BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/07/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.5633 of 2007 C.Kathirvelu ... Petitioner Vs 1.D.Thillairaj 2.D.Thangaraj 3.V.Kanagaraj ... Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order of return by the Special Court, Madurai, dated 25.04.2007, and consequently direct the learned Special Court, Madurai to take the unnumbered case on file and proceed with the trial of the case as per the provision of the 'Electricity Act, 2003'. !For Petitioner ... Mr.M.Patturajan ^For Respondents ... Mr.P.Rajendran Government Advocate (Crl. Side) :ORDER
This petition has been filed to set aside the order of return by the
Special Court, Madurai, dated 25.04.2007, and consequently direct the learned
Special Court, Madurai to take back the complaint on file and proceed with it as
per the provision of the ‘Electricity Act, 2003’.
2. Heard both sides.
3. The background facts which are absolutely necessary and germane for the
disposal of this petition would run thus:
The grievance of the petitioner is that he being the Executive Engineer of
the Electricity Board, is duty bound to file various complaints under the
Electricity Act, 2003 as against the offenders. While so, he filed a complaint
dated 01.03.2007 before the learned Principal District and Sessions Judge,
Madurai, for the offences under Sections 135(1)(a)(b)(c) and 138(d) of the
Electricity Act, 2003, by invoking Section 153 of the said Act. The learned
Sessions Judge returned it on the ground that only on committal, he could take
cognizance of the matter.
4. Being aggrieved by and dissatisfied with, such an order of the learned
Sessions Judge, this petition has been focussed:
5. Heard both sides. Perused the records.
6. The perusal of the order dated 25.04.2007, would clearly show that the
learned Sessions Judge misinterpreted the relevant G.O as well as Section 153 of
the Electricity Act. The learned Sessions Judge relied on the decision of the
Honourable Apex Court in Gangula Ashok and another v. State of Andhra Pradesh
reported in AIR 2000 SC 740 which in no way lays down the law that in all
matters, relating to the Special Court, there should be committal. The
Honourable Apex Court in the cited precedent highlights that in view of the
express words used in Section 14 and 2(1)(d) of S.C and S.T Act, 1989, there
should be committal of the case by the learned Magistrate and then only, the
learned Sessions Judge could take cognizance of the matter. In this connection,
I would like to refer to the decision of this Court in Dr.S.Sourubarani &
another v. C.Selvi reported in 2005-1-L.W.(Crl.) 139 relating to the Human
Rights Act.
7. No doubt, this Court relating to the Human Rights Act, relied upon the
said decision and arrived at the conclusion that relating to the cases under the
Human Rights Act also, there should be committal by the Magistrate and then
only, the Court could take cognizance.
8. At this juncture, it is just and necessary to distinguish and
differentiate between Section 153 of the Electricity Act, 2003, with that of the
provisions relating to S.C and S.T Act, 1989 as well as the Human Rights Act.
Section 14 of the S.C and S.T Act, is reproduced hereunder for ready reference:
“14.Special Court:- For the purpose of providing for speedy trial, the
State Government shall, with the concurrent of the Chief Justice of the High
Court, by notification in the Official Gazatette, specify for each district a
Court of Session to be a Special Court to try the offences under this Act.”
(emphasis added)
Section 30 of the Human Rights Act, would run thus:
“30. Human Rights Courts:- For the purpose of providing speedy trial of
the offences arising out of violation of human rights, the State Government may,
with the concurrence of the Chief Justice of the High Court, by notification,
specify for each district a Court of Session to be a Human Rights Court to try
the said offences:
PROVIDED that nothing in this section shall apply if –
(a) a Court of Session is already specified as a Special Court; or
(b) a Special Court is already constituted, for such offences under any
other law for the time being in force.” (emphasis supplied)
Section 153 of the Electricity Act is reproduced hereunder for ready reference:
“153. Constitution of Special Courts:. (1) The State Government may, for
the purposes of providing speedy trial of the offences referred to in Sections
135 to 139, by notification in the Official Gazette, constitute as many Special
Courts as may be necessary for such area or areas, as may be specified in the
notification.
(2) A Special Court shall consist of a single Judge who shall be appointed
by the State Government with the concurrence of the High Court.
(3) A person shall not be qualified for appointment as a Judge of a
Special Court unless he was, immediately before such appointment, an Additional
District and Sessions Judge.
(4) Where the office of the Judge of a Special Court is vacant, or such
Judge is absent from the ordinary place of sitting of such Special Court, or he
is incapacitated by illness or otherwise for the performance of his duties, any
urgent business in the Special Court shall be disposed of-
(a) by a Judge, if any, exercising jurisdiction in the Special court;
(b) where there is no such other Judge available, in accordance with the
direction of District and Sessions Judge having jurisdiction over the ordinary
place of sitting of Special Court, as notified under sub-section (1).” (emphasis
added)
9. A mere comparison of Section 153 of the Electricity Act on the one hand
and the aforesaid two Sections under the other special enactments, would
highlight that here in the Electricity Act, the Court of Session as such, is not
mandated to be the Special Court to take cognizance of the matter to deal with
the complaints. However, in those special enactments, the Court of Session is
contemplated as the Special Court. This subtle distinction has not been taken
note of by the learned Sessions Judge. Section 153 of the Electricity Act would
simply empower the State Government to constitute Special Court and that Court
need not necessarily be the Sessions Court itself. But, the Judge to be
appointed to such Special Court should have been immediately before the said
appointment an Additional District and Sessions Judge, whereas in the earlier
two enactments cited supra, the Court of Session itself is contemplated to be
designated as the Special Court. Simply because, the District and Sessions
Judge also could be designated as Special Court by the State and the Statue also
empowered him to hold the additional charge under section 153(4)(b) of the
Electricity Act, that it does not mean that the Special Court should have all
the trappings of the Sessions Court.
10. The learned Counsel for the petitioner would draw the attention of
this Court to Section 154 of the Electricity Act, and highlight that the
procedure contemplated under the Special enactment is entirely different from
the procedures contemplated relating to Sessions Cases.
11. As such, according to the learned Counsel for the petitioner, the
legislators thought fit to prescribe a separate wholesome and full-fledged
procedure under Part-XV of the Electricity Act, 2003 to deal with the
complaints. He would also further convincingly argue that the object of the
constitution of Special Court with special powers is only for the purpose of
speedy trial and that the offenders under the Electricity Act should not go
scot-free or indulge in dilating tactics, by taking undue advantage of the
committal procedures and the Sessions Court procedures and the facts remain that
big fish are mostly involved in defrauding huge electricity dues. In
commensurate with Section 153 of the Electricity Act, the State Government
passed the notification and in that, the authorities are found declared as
Special Courts under Section 153 of the Act. Simply because, incidentally, the
authorities happened to be the Sessions Judge, it cannot be stated that only on
committal, he could take cognizance.
12. At this juncture, I would like to observe that the Government while
passing the G.O.Ms.No.102 dated 05.10.2006,
could have done well by referring from specifying the term under column 3 as
“Name of the Court of Session” in the table. They could have very well mentioned
as “Names of the Special Courts” instead of “Court of Session”. I would also
expect in the interest of justice that the Government shall take note of my
observation and pass corrigendum to that effect.
13. Hence, in this view of the matter, the following direction is issued:
The learned Sessions Judge shall take the complaint on file on being
represented and process the matter as per the Electricity Act, without expecting
any Magistrate to commit the case to him.
14. With the above direction, this petition is disposed of.
rsb
To
The Special Court, Madurai