Shri A.M.C.S. Swamy, ADE/DPE/Hyd (Central) vs Mehdi Agah Karbalai & Anr.

Crl.A.No. @SLP (Crl. No . 2073 of 2019 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1102 OF 2019 (Arising out of S.L.P.(Crl.) No.2073 of 2019)

Sri A.M.C.S. Swamy, ADE/DPE/Hyd (Central) ...Appellant

Versus

Mehdi Agah Karbalai & Anr. ...Respondents

JUDGMENT

R.Subhash Reddy,J.

1. Leave granted.

2. This Criminal Appeal is filed by the Officer of the State Distribution

Utility Southern Power Distribution of Telangana Limited (formerly known

as APCPDCL) challenging the order dated 03.12.2018 passed by the High

Court of Judicature at Hyderabad in Criminal Petition No.13678 of 2011.

3. By the aforesaid order, the High Court has allowed the Criminal

Petition No.13678 of 2011, which was filed under Section 482 of the Code Signature Not Verified

of Criminal Procedure, 1973, and quashed the proceedings in E.S.C. No.3 Digitally signed by SANJAY KUMAR Date: 2019.07.23 17:09:43 IST Reason:

of 2011 on the file of 1st Additional Metropolitan Sessions Judge,

Hyderabad.

Crl.A.No. @SLP (Crl. No . 2073 of 2019 2

4.(a) Respondent No.1 herein is a consumer of electricity with Service

Connection bearing SC No.CZ007583 connected with a load of 12903 W

of Southern Power Distribution of Telangana Limited (SPDTL). On

12.11.2009 at about 12.26 hours, premises of respondent No.1 was

inspected in his presence by the concerned staff of the appellant. At the

time of inspection, the inspecting authorities have found extra pressing and

seal bit bulging marks along with seal wire on the meter box seal. The

said meter was replaced with another meter and the earlier meter was sent

to MRT Lab for examination. The MRT Lab, on examination, certified that

the meter was tampered. The loss thereby was assessed at Rs.6,28,383/-

(Rupees six lakhs twenty eight thousand and three hundred and eighty

three only). It is a case of the appellant that the offence committed by

respondent No.1 is a second offence. The first offence registered against

respondent No.1 was in Crime No.491 of 2008 dated 25.11.2008. The first

criminal case registered against respondent No.1 was compounded on

03.08.2009 upon payment of Rs.47,000/- (Rupees forty seven thousand

only).

(b) When the appellant noticed tampering of meter, on receipt of report

from MRT Lab, the concerned officer has lodged a complaint on

24.11.2009 and the same was registered as First Information Report

No.440 of 2009 on 25.11.2009, for the offence punishable under Section

135 of Electricity Act, 2003. On filing the charge sheet, as contemplated

under Section 173 of the Code of Criminal Procedure, 1973, on Crl.A.No. @SLP (Crl. No . 2073 of 2019 3 10.01.2011, the Special Court took cognizance of the case under Section

151 of the Electricity Act, 2003 as amended by Act 26 of 2007, which came

into force from 15.06.2007, and registered the same as E.S.C. No.3 of

2011.

(c) Respondent No.1 herein has filed Criminal Petition No.13678 of 2011

before the High Court of Judicature at Hyderabad under Section 482 of the

Code of Criminal Procedure, 1973, seeking to quash the aforesaid

proceedings on two grounds. The first ground was that the complaint was

not filed within twenty-four hours of disconnection as mandated under

proviso to Section 135(1-A) of the Indian Electricity (Amendment) Act,

2007.

Section 135(1-A) of the Indian Electricity (Amendment) Act, 2007, reads as

under:

“(1-A) Without prejudice to the provisions of this Act, the licensee or supplier, as the case may be, may, upon detection of such theft of electricity, immediately disconnect the supply of electricity:

……

Provided further that such officer of the licensee or supplier, as the case may be, shall lodge a complaint in writing relating to the commission of such offence in police station having jurisdiction within twenty-four hours from the time of such disconnection:”

The second ground was that the Special Court has taken cognizance

without any order of committal and the same is in violation of

Section 193 of the Code of Criminal Procedure, 1973. In support of the

said contention, respondent No.1, before the High Court, relied on a Crl.A.No. @SLP (Crl. No . 2073 of 2019 4 decision in the case of State of Andhra Pradesh, represented by its

Public Prosecutor v. M/s. Shalini Steels Private Limited, Bollaram,

Medak District1. In the said case, High Court by relying on the decision of

this Court in Gangula Ashok & another v. State of Andhra Pradesh2

held that committal order is must, unless it is strictly made clear in the

special enactment that committal order is not required. In the impugned

order, the High Court, mainly on the ground that the Special Court has

taken cognizance directly and the same is not disputed by the learned

Public Prosecutor, quashed the proceedings.

5. We have heard Ms. Meenakshi Arora, learned Senior Advocate,

assisted by the Advocate on record for the appellant, and also Mr. A.

Sirajudeen, learned Senior Advocate, assisted by the Advocate on record

for respondent No.1.

6(a) In this appeal, mainly it is contended by Ms. Meenakshi Arora,

learned Senior Advocate appearing for the appellant, that the High Court

has passed the impugned order without examining the proviso to Section

151 of the Electricity Act, 2003. It is submitted that the proviso to Section

151 of the Electricity Act, 2003, specially empowers the Special Court to

take cognizance directly, as such, it cannot be said that taking cognizance

by the Special Court is in violation of provision under Section 193 of the

Code of Criminal Procedure, 1973.

1 2011 CrlLJ 67 2 (2000) 2 SCC 504 = 2000(1) ALT (Crl) 174 (SC) Crl.A.No. @SLP (Crl. No . 2073 of 2019 5 (b) Further, by referring to the additional affidavit and other material

placed on record, it is submitted that on 12.11.2009, when it was

suspected that respondent No.1 has tampered the meter, the said meter

was replaced with another meter on the same day i.e., 12.11.2009 and the

supply was not disconnected on the said date and disconnection has taken

place after receipt of the Lab report only, that is on 25.11.2009. To

substantiate the said plea, the learned Senior Advocate further submitted

that a bill was issued for consumption of energy by respondent No.1 for

the period from 12.11.2009 till 25.11.2009.

(c) It is submission of the learned Senior Advocate that in the case of

Shalini Steels Private Limited (supra), on which reliance was placed, the

High Court has rendered it based on the decision of this Court in the case

of Gangula Ashok (supra), which was a case arising out of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is

submitted that there is no provision in the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989, equivalent to

Section 151 of the Electricity Act, 2003. In that context, considering the

provisions of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989, this Court has held that the Special Court cannot

take cognizance directly unless the case has been committed to it by a

Committal Court as contemplated under Section 193 of the Code of

Criminal Procedure, 1973.

Crl.A.No. @SLP (Crl. No . 2073 of 2019 6

(d) It is submitted that though respondent No.1 herein is an offender of

theft of electricity for the second time, the High Court has committed error

in quashing the proceedings without taking into consideration the proviso

to Section 151 of the Electricity Act, 2003.

7. On the other hand, Sri Sirajudeen, learned Senior Advocate appearing

for respondent No.1, referring to the counter affidavit and other material on

record, has submitted that the disconnection was made on 12.11.2009 and

the complaint was lodged on 24.11.2009 which is ex facie time barred and

the same is contrary to the proviso to Section 135(1A) of the Electricity Act,

2003 (Amendment Act 26 of 2007). It is further submitted that the Court

which has taken cognizance of the offence is not a Special Court within the

meaning of the Electricity Act, 2003. It is further submitted that merely

because the Presiding Officer is of the rank of Additional Sessions Judge,

it cannot be construed as a Special Court within the meaning of the

Electricity Act, 2003. It is submitted that as the Court lacks jurisdiction,

further the complaint was not lodged within twenty-four hours from

disconnection, the cognizance taken against respondent No.1 is rightly

quashed by the High Court and there are no grounds to interfere.

8. Having heard the learned counsel on both sides, we have perused the

impugned order and the other material placed on record.

9. From a perusal of the order passed by the High Court, it is clear that

the petition for quashing under Section 482 of the Code of Criminal Crl.A.No. @SLP (Crl. No . 2073 of 2019 7 Procedure, 1973, was filed by respondent No.1 only on two grounds viz.,

(i) the complaint was not lodged within twenty-four hours as contemplated

under Section 135(1A) of the Electricity Act, 2003 (Amendment Act 26 of

2007), and (ii) the Special Court has taken cognizance directly without an

order of committal as contemplated under Section 193 of the Code of

Criminal Procedure, 1973. The High Court had relied on its earlier

decision in Shalini Steels Private Limited (supra) which itself was

rendered based on the decision of this Court in Gangula Ashok (supra).

The High Court, only on the ground that taking cognizance of the case by

the Special Court is not disputed by the learned Public Prosecutor, has

passed the impugned order, quashing the proceedings.

10. It is true that as per the procedure under Section 193 of the Code of

Criminal Procedure, 1973, no Court of Session shall take cognizance of

any offence as a Court of original jurisdiction unless the case has been

committed to it by a Magistrate except as otherwise expressly provided by

the Code of Criminal Procedure, 1973, or any other law for the time being

in force. Section 193 of the Code of Criminal Procedure reads as under:

“193. Cognizance of offences by Courts of Session:-

Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.” Crl.A.No. @SLP (Crl. No . 2073 of 2019 8

11. Section 151 of the Electricity Act, 2003 is altogether a new provision.

Section 151 of the Act provides that no court shall take cognizance of an

offence punishable under the Act except upon a complaint in writing made

by the Appropriate Government or Appropriate Commission or any of their

officer authorised by them or a Chief Electrical Inspector or an Electrical

Inspector or licensee or the generating company, as the case may be, for

this purpose. Second proviso to Section 151 of the Electricity Act, 2003,

specially empowers the Special Court constituted under Section 153 of the

Electricity Act, 2003, to take cognizance of an offence without the accused

being committed. In view of the specific provision under Section 151 of the

Electricity Act, 2003, we are of the view that Special Court is empowered

to take cognizance without there being an order of committal as

contemplated under Section 193 of the Code of Criminal Procedure, 1973.

When there is express provision in the Special Act empowering the Special

Court to take cognizance of an offence without the accused being

committed, it cannot be said that taking cognizance of offence by Special

Court is in violation of Section 193 of the Code of Criminal Procedure,

1973. It appears that the High Court has not considered the said proviso

to Section 151 and passed the impugned order. As the impugned order is

passed only on the said ground, we are of the view that the order

impugned is liable to be set aside by this Court.

12. Further, Mr. A. Sirajudeen, learned Senior Advocate appearing for

respondent No.1, has submitted that the complaint was not lodged within Crl.A.No. @SLP (Crl. No . 2073 of 2019 9 twenty-four hours as required under Section 135(1A) of the Electricity Act,

2003, and also submitted that the Court which has taken cognizance is not

a Special Court within the meaning of the Electricity Act, 2003. Ms.

Meenakshi Arora, learned Senior Advocate appearing for the appellant,

has submitted that the date of disconnection as mentioned earlier as

12.11.2009 is not correct and that the power supply was disconnected only

on 25.11.2009, as such, complaint was filed within the timeframe. Further,

it is submitted by the learned Senior Advocate appearing for the appellant

that the Government vide G.O.Ms. No.118, Energy (Power-II) Department,

dated 18.10.2003, notified the 1st Additional District Judge’s Court as a

Special Court for the purpose of cases arising under the Electricity Act,

2003, as such, the Special Court is having competent jurisdiction.

13. The aforesaid both grounds raised by respondent No.1 cannot be

accepted to sustain the impugned order. In view of the submission made

by the learned Senior Advocate appearing for the appellant that the

disconnection was within the specified time and further the Government

has already issued notification notifying the 1st Additional District Judge’s

Court as a Special Court, we are not inclined to accept the submission

made by the learned Senior counsel appearing for respondent No.1.

14. For the aforesaid reasons, we allow this appeal and set aside the

impugned order dated 03.12.2018 in Criminal Petition No.13678 of 2011

passed by the High Court of Judicature at Hyderabad. We make it clear Crl.A.No. @SLP (Crl. No . 2073 of 2019 10 that we have not gone into merits of the matter and it is open for the trial

Court to record its own findings based on the evidence during trial.

15. Accordingly, the appeal is allowed, with an observation as indicated

above. Since the occurrence is of the year 2009, the trial court shall

expedite the hearing of the case.

…..…..………....................J [R. Banumathi]

…….....……….. .................J. [R. Subhash Reddy]

New Delhi;

July 23, 2019