IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 758 of 2010()
1. V.VIJAYAN, S/O. VELAYUDHAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SUB INSPECTOR OF POLICE,
3. THE ASSISTANT EXECUTIVE ENGINEER,
4. THE ASSISTANT ENGINEER,
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.P.P.THAJUDEEN, SC, K.S.E.B
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/03/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.758 of 2010
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ORDER
Petitioner is the first accused in C.C.No.
678/2006 on the file of Judicial First Class
Magistrate’s Court-II, Attingal, taken cognizance for
the offences under Section 135 and 136 of Indian
Electricity Act, 2003 on Annexure-A5 final report
submitted under Section 173(2) of Code of Criminal
Procedure. Prosecution case is that in violation of the
provision that electricity shall not be misused or
stolen, Hotel Shilpa Gardens, owned by the
petitioner/first accused as the Proprietor with the
second accused as the Manager, having electric
connection with Consumer No.16786, had stolen current
from the meter and got the lights and electric
equipments function and caused loss to Kerala State
Electricity Board and thereby committed the offences.
This petition is filed under Section 482 of Code of
Criminal Procedure to quash the cognizance taken
contending that as provided under Section 151 of Indian
CRMC 758/10 2
Electricity Act, cognizance should not have been taken
on a final report, but only on a complaint filed by an
authorised officer and on that sole ground, the
cognizance taken is to be quashed. It is also contended
that subsequently, the Deputy Chief Engineer, Anti
Power Theft Squad, after inspection, passed Annexure-A6
order stating that consumer has never indulged in theft
of electricity, but found that there existed an
unauthorised additional load of 2KW in the premises and
this need not be penalised and the penalty issued need
to be revised. The Assistant Engineer, Electrical
Section was directed to revise the bill and taking into
consideration, the amount already remitted on this
account, the excess payment made by the consumer should
be credited and no surcharge should be levied. It is
contended that in such circumstances, even if
petitioner is to be tried, he cannot be convicted and
therefore, the case is to be quashed.
2. Learned counsel appearing for the petitioner
and learned standing counsel appearing for respondents
3 and 4, the Engineers of Kerala State Electricity
Board and learned Public Prosecutor were heard.
CRMC 758/10 3
3. As rightly pointed out by the learned counsel
appearing for the petitioner, learned Magistrate has
taken cognizance on Annexure-A5 final report, submitted
under Section 173(2) of Code of Criminal Procedure and
not on a complaint filed by an officer as provided
under Section 151 of Indian Electricity Act. Though,
under the proviso to Section 151 of Indian Electricity
Act, which came into effect on 15.6.2007, Magistrate is
empowered to take cognizance even on a police report,
the cognizance in this case was taken in 2006, prior to
the commencement of the proviso to Section 151.
Therefore, as declared by the Division Bench of this
Court in Paramasivam v. Union of India (2007 (2) KLT
733), the cognizance taken is bad and it can only be
quashed.
Petition is allowed. The cognizance taken on
Annexure-A5 final report in C.C.No.678/2006 on the file
of Judicial First Class Magistrate’s Court-II, Attingal
is quashed.
16th March, 2010 (M.Sasidharan Nambiar, Judge)
tkv