It is also
necessary to note that the power of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded. The same
is also evident from the provisions of sub-section (2) of Section 154
of the Act 2003 that in the course of any enquiry or trial, if it appears
to any Court that an offence punishable under Sections 135 to 140
and Section 150 of the Act 2003 in respect of any offence that the
case is one which is triable by the special court constituted under the
Act of 2003 for the area in which such case has arisen, it shall
transfer such case to such special court, and thereupon such case
shall be tried and disposed of by such Special Court in accordance
with the provisions of this Act.
As per the provisions of Section 460 of Cr.P.C. particularly
clause (e), if any Magistrate is not empowered by law to take
cognizance of offence under clause (a) or clause (b) of sub-section
(1) of Section 190 of Cr.P.C. such irregularity do not vitiate the
proceedings.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 227 OF 2005
Tukaram S/o Pandurang Lalpotu,
v
The State of Maharashtra
CORAM : V. K. JADHAV, J.
Dated : 15.09.2016
Citation: 2016 ALLMR(CRI)4624
1. Being aggrieved by the order passed by learned J.M.F.C.
Parbhani in R.C.C. No.212 of 2004 dated 25.5.2004 thereby issuing
process against the petitioner accused for the offences punishable
under Sections 135 and 138 of Electricity Act 2003 and confirmed in
Criminal Revision No. 146 of 2005 by the 2nd Ad-hoc Additional
Sessions Judge, Parbhani on 6.4.2005, the original accused has
preferred this writ petition.
2. Brief facts, giving rise to the present writ petition are as
follows:-
a) On 16.3.2004, the Deputy Executive Engineer, flying squad of
Maharashtra State Electricity Board had visited the shop of the
accused and inspected the electric meter bearing No. 525343
(MTU/PBN-1831) of Elymer make. He had inspected the sanctioned
load and other details. It was noticed that the meter was running
slowly and connected load is more than sanctioned load. Thus, the
Deputy Executive Engineer directed the concerned Officer to replace
the meter. The spot inspection report was prepared in presence of
the accused on the same day. On the basis of said report submitted
by flying squad on 18.3.2004, a bill of Rs.1,55,000/- came to be
issued to the accused. Furthermore, a notice dated 22.3.2004 also
issued directing the accused to deposit entire amount under bill
within three days and on failure, the power supply will be
disconnected. Furthermore, on 24.4.2004, the said meter was
opened before the witnesses and in presence of the accused, and on
inspection, the tampering of meter was noticed. The photographs
were also taken and a joint inspection report was prepared in the
office of flying squad unit. It was also observed that the accused had
illegally extracted electric energy by using other devices
unauthorizedly. Thus, on 27.4.2004 the Deputy Executive Engineer
filed a private complaint before the J.M.F.C., Parbhani against the
petitioner accused for having committed offences punishable under
Sections 135 and 138 of Electricity Act 2003.
b) The learned J.M.F.C. on recording verification statement of
the complainant, by impugned order dated 25.5.2004 directed
issuance of process against the accused under Sections 135 and
138 of Electricity Act 2003. Being aggrieved by the said order, the
accused preferred criminal revision No. 146 of 2005 before the
Sessions Court, Parbhani and the learned 2nd Adhoc Additional
Sessions Judge, Parbhani by order dated 6.4.2005 dismissed the
said revision. Hence, this writ petition.
3. Learned counsel for the petitioner submits that in view of
amendment to Sections 153 and 154 of Electricity Act 2003, the
Magistrate is not empowered to take cognizance of offences
punishable under Sections 135 and 138 of Electricity Act 2003 and
try those offences. The Special Courts are constituted for the trial of
the offences referred to in Sections 135 to 140 and Section 150 and in
view of provisions of Section 153 of the Act 2003, the Special Court
shall consist of single Judge, who shall be appointed by the State
Government with concurrence of the High Court and 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. In its application to the State of Maharashtra, in
Section 153, after sub section (4), the State Amendment (Maharashtra)
added sub-section (5) thereby making it clear that, where no Special
Court for any area or areas has been constituted under sub-section (1),
one or more Additional District and Sessions Judges, as may be
designated by the High Court, for such area or areas, from time to time,
shall exercise the powers of the Special Court under this Act and any
Judge so designated shall be deemed to be a Special Court for the
purpose of this Act.
In view of provision of Section 151 of the Act of 2003, the
Special Courts constituted under Section 153 shall be competent to take
cognizance of the offence without the accused being committed to it for
trial. In view of sub-section (1) of Section 154, every offence punishable
under Sections 135 to 140 and Section 150 shall be triable only by the
Special Court, within whose jurisdiction such offence has been
committed. Despite such observations have been made by this court in
the order dated 2.12.2005 while issuing Rule and even though learned
A.P.P. was directed to obtain the instructions, either from the State or
from the Registrar General, High Court, Appellate Side, Bombay,
whether any Special Courts are established and if not, whether any
notifications have been issued under section 153(5) by the High Court,
one letter dated 22.3.2004 issued by the Registrar (Legal), High Court,
Bombay which is addressed to the Chairman, Maharashtra State
Electricity Board on the subject of issuance of administrative direction
for acceptance of cases involving offences under the Electricity Act
2003 and directions regarding grant of remand etc. produced before
the court, wherein it is stated that the Electricity Board may file
written complaint before the Magistrate through the person
mentioned in Section 151 of the Electricity Act and the Magistrate
shall thereafter follow the procedure, as laid down in Sections 200
and 202 of Cr.P.C. Learned counsel submits that entire approach of
the Magistrate of accepting the complaint and issuing process
thereon is per-se illegal and thus liable to be quashed and aside.
Learned counsel submits that as per the provisions of Section
201 of Cr.P.C. if the complaint is made to the Magistrate, who is not
competent to take cognizance of the offence, he shall, if the
complaint is in writing, return it for presentation to the proper court
with an endorsement to that effect and if the complaint is not in
writing, direct the complainant to the proper court. Even the learned
Magistrate has not followed the procedure as contemplated under
Section 201 of Cr.P.C.
4. Learned counsel for respondent No.2 submits that as per the
provisions of Section 151 of the Act of 2003, the cognizance of an
offence punishable under this Act is barred by the court except upon
a complaint in writing made by the Appropriate Government or
Appropriate Commission or any of their Officer authorized 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. It is
not disputed that the Deputy Executive Engineer of M.S.E.B. is an
officer authorized to file the complaint in writing before the court, as
provided under the provisions of Section 151 of the Act 2003. By
way of proviso to Section 151, it is made clear that Special courts
constituted under Section 153 shall be competent to take cognizance
of an offence without the accused being committed to it for trial.
Learned counsel submits that in view of sub-Section (2) of Section
154 of the Act 2003, if in the course of any enquiry or trial that an
offence punishable under Sections 135 to 140 and Section 150 in
respect of any offence that the case is one which is triable by a
Special Courts constituted under this Act for the area in which such
case has arisen, it shall transfer such case to such Special Court and
thereupon, such case shall be tried and disposed of by such Special
Court in accordance with the provisions of this Act.
In view of provisions of Section 190 of Cr.P.C. the Magistrate
may take cognizance of any offences; (a) upon receiving a complaint
of facts which constitute such offence; (b) upon a police report of
such facts; (c) upon information received from any person other than
a police officer, or upon his own knowledge, that such offence has
been committed. In absence of any notification/ designation of one
or more Additional District and Sessions Judge, as a Judge of the
Special Court, as per sub section (5) of Section 153 of the Act 2003
(State Amendment to Maharashtra), the Magistrate is not debarred
from taking cognizance of offence upon receiving a complaint on
facts, which constitute such offence. Learned counsel submits that in
view of sub-section (2) of Section 154, as referred above, the
Magistrate can transfer such cases to such Special Court and
thereupon such case shall be tried and disposed of by such Special
Court in accordance with the provisions of Act 2003. Learned
counsel submits that in view of provisions of Section 460 of Cr.P.C.
particularly clause (e), if the Magistrate is not empowered by law to
take cognizance of offence under clause (a) or clause (b) of sub
section (1) of Section 190 and done so, this irregularity does not
vitiate the proceedings. Learned counsel submits that in any manner,
this ground alone is not sufficient to quash and set aside the order of
issuance of process passed by the Magistrate in this case.
5. I have also heard learned A.P.P. for the respondent-State.
6. Section 151 of Electricity Act deals with the cognizance of
offence made punishable under the Act. Section 153 provides the
constitution of special court and further Section 154 prescribes the
procedure and power of the Special Court. Sections 151, 153
alongwith sub section (5) i.e. State amendment to Maharashtra and
Section 154 sub section (1) and (2) are relevant for discussion in the
present matter, which are reproduced below:-
“151. Cognizance of offences.- No court shall take cognizance of
an offence punishable under this Act except upon a complaint in
writing made by Appropriate Government or Appropriate
Commission or any of their officer authorized 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.
Provided that the court may also take cognizance of an offence
punishable under this Act upon a report of a police officer filed
under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section
153 shall be competent to take cognizance of an offence without
the accused being committed to it for trial.
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, for S. 151 substitute the following
section, namely;-
“151. Cognizance of offences.- No Court shall take
cognizance of an offence punishable under this Act except,-
(a) Upon a complaint in writing made by Appropriate
Government, or Appropriate Commissioner or any of their
officer authorized by them or a Chief Electrical Inspector or an
Electrical Inspector or a licensee or the generating company,
as the case may be, for this purpose; or
(b) upon a police report of facts which constitute an offence;
Provided that, such police report is based on the First
Information Report filed by a person who is authorized to file a
complaint under clause (a).”
153. Constitution of Special Courts.- (1) The State Government
may, for the purposes of providing speedy trial of offences referred
to in sections 135 to 140 and section 150, 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).
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, in S. 153 after sub-S.(4), add the
following sub-section, namely:-
“(5) Where No Special Court for any area or areas has been
constituted under sub-section (1), one or more Additional
District and Sessions Judges, as may be designated by the
High Court, for such area or areas, from time to time, shall
exercise the powers of the Special Court under this Act and
any Judge so designated shall be deemed to be a Special
Court for the purposes of this Act.”
154. Procedure and power of Special Court.- (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, every offence punishable under sections 135 to
140 and section 150 shall be triable only by the Special Court
within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or
trial that an offence punishable under sections 135 to 140 and
section 150 in respect of any offence that the case is one which is
triable by a Special Court constituted under this Act for the area in
which such case has arisen, it shall transfer such case to such
Special Court, and thereupon such case shall be tried and
disposed of by such Special Court in accordance with the
provisions of this Act:
Provided that it shall be lawful for such Special Court to act on
the evidence, if any, recorded by any court in the case of presence
of the accused before the transfer of the case to any Special
Court:
Provided further that if such Special Court is of opinion that
further examination, cross-examination and re-examination of any
of the witnesses whose evidence has already been recorded, is
required in the interest of justice, it may resummon any such
witness and after such further examination, cross-examination or
reexamination, if any, as it may permit, the witness shall be
discharged.”
(3) …..
(4) …..
(5) …..
(6) …..”
7. Learned counsel for the petitioner, in view of the provisions of
Section 151 which is about cognizance of offence by the Special
Court without accused being committed it for trial and further as per
the provision of Section 153 wherein the designation of one or more
Additional District and Sessions Judges as a special Court for any
area or areas by the High Court, submits that the order of issuance of
process by the Magistrate by taking cognizance of the complaint of
the offence made punishable under the Electricity Act itself is illegal
and thus liable to be quashed and set aside.
8. Section 190 of Cr.P.C. provides that the Magistrate may take
cognizance of offence, upon receiving a complaint or upon police
report or on information received from the person other than a police
officer, or upon his own knowledge. Thus, cognizance is taken at the
initial stage when the Magistrate peruse the complaint with a view to
ascertain whether the commission of any offence is disclosed.
9. As per the provisions of Section 153 of Electricity Act, the
Additional District and Sessions Judge shall be competent to be
appointed as a Judge of Special court and if no special court has
been constituted under sub-section (1) of Section 153, then in view of
State Amendment (Maharashtra) of sub-section (5) of Section 153,
the High Court may designate one or more Additional District and
Sessions Judges to exercise the powers of Special court under the
Act and any Judge, so designated, shall be deemed to be special
court for the purpose of the Act of 2003. Further, in view of the
provisions of Section 151, more specifically proviso 2, the special
court, as constituted under the provisions of Section 153, shall be
competent to take cognizance of offence without accused being
committed to it for trial. In ordinary course, the special court, being
the court of Sessions, would not take cognizance of the offence
without accused being committed it for trial. The same would be
defeating the object of speedy enquiry or trial of offence explicit
under the provisions of Section 153 of the Electricity Act. Thus, there
is enabling provision under Section 151 proviso as above,
empowering that the special court to take cognizance of offence
without the accused being committed to it for trial. It is also
necessary to note that the power of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded. The same
is also evident from the provisions of sub-section (2) of Section 154
of the Act 2003 that in the course of any enquiry or trial, if it appears
to any Court that an offence punishable under Sections 135 to 140
and Section 150 of the Act 2003 in respect of any offence that the
case is one which is triable by the special court constituted under the
Act of 2003 for the area in which such case has arisen, it shall
transfer such case to such special court, and thereupon such case
shall be tried and disposed of by such Special Court in accordance
with the provisions of this Act.
10. Learned counsel for the petitioner submits that in view of
section 201 of Cr.P.C. if the complaint is made to a Magistrate, who
is not competent to take cognizance of the offence, he shall if the
complaint is in writing, return it for presentation in the proper court
with an endorsement to that effect. It is well settled that expression
“take cognizance” would mean that take the notice of offence and
would include (a) take the notice of offence in judicial capacity with a
view to initiate judicial proceedings against offender in respect of that
offence or (b) take the notice of offence by Magistrate in an executive
capacity or (c) take the notice of offence for other purposes. As per
the provisions of Act of 2003 the powers of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded and it is
provided that the special Court constituted under the provisions of
Section 153 shall be competent to take cognizance of offence without
the accused being committed to it for trial. Proviso to Section 151 of
the Act of 2003 was inserted w.e.f. 15.6.2007 and the State
Amendment (Maharashtra) to Section 151 of the Act 2003 w.e.f.
23.6.2005 simply provides that the court shall not take cognizance of
offence except upon a complaint in writing made by a person as
detailed in clause (a) of Section 151 (State Amendment -
Maharashtra).
11. At present all Sessions Judges, Additional Sessions Judges
and Adhoc Additional Sessions Judges, appointed to preside over
the special Courts constituted under sub-section (1) of Section 153 of
the Act to exercise jurisdiction and power under the said Act by
notification dated 27.8.2014 issued in concurrence with the Hon’ble
the Chief Justice of this Court. In view of the provision of Section
154 of sub-section (2) of the Act 2003 the Magistrate is bound to
transfer the said cases to such special Court and thereupon such
case shall be tried and disposed of by special court in accordance
with the provisions of the Act of 2003.
12. As per the provisions of Section 460 of Cr.P.C. particularly
clause (e), if any Magistrate is not empowered by law to take
cognizance of offence under clause (a) or clause (b) of sub-section
(1) of Section 190 of Cr.P.C. such irregularity do not vitiate the
proceedings.
13. In view of above discussion, I do not find any substance in the
writ petition. The writ petition is thus liable to be dismissed. Hence,
the following order:-
O R D E R
I. Criminal writ petition is accordingly dismissed with
following directions:-
“The learned Chief Judicial Magistrate, Parbhani in
compliance with the provisions of sub-Section (2) of
Section 154 of the Electricity Act 2003, shall transfer
R.C.C. No.212 of 2004 to such special Court (Sessions
Court at Parbhani) constituted under the Act of 2003 and
thereupon the said case shall be tried and disposed of the
such special Court in accordance with the provisions of
Electricity Act 2003.”
II. The writ petition is disposed of. Rule discharged.
( V. K. JADHAV, J.)
Print Page
necessary to note that the power of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded. The same
is also evident from the provisions of sub-section (2) of Section 154
of the Act 2003 that in the course of any enquiry or trial, if it appears
to any Court that an offence punishable under Sections 135 to 140
and Section 150 of the Act 2003 in respect of any offence that the
case is one which is triable by the special court constituted under the
Act of 2003 for the area in which such case has arisen, it shall
transfer such case to such special court, and thereupon such case
shall be tried and disposed of by such Special Court in accordance
with the provisions of this Act.
As per the provisions of Section 460 of Cr.P.C. particularly
clause (e), if any Magistrate is not empowered by law to take
cognizance of offence under clause (a) or clause (b) of sub-section
(1) of Section 190 of Cr.P.C. such irregularity do not vitiate the
proceedings.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 227 OF 2005
Tukaram S/o Pandurang Lalpotu,
v
The State of Maharashtra
CORAM : V. K. JADHAV, J.
Dated : 15.09.2016
Citation: 2016 ALLMR(CRI)4624
1. Being aggrieved by the order passed by learned J.M.F.C.
Parbhani in R.C.C. No.212 of 2004 dated 25.5.2004 thereby issuing
process against the petitioner accused for the offences punishable
under Sections 135 and 138 of Electricity Act 2003 and confirmed in
Criminal Revision No. 146 of 2005 by the 2nd Ad-hoc Additional
Sessions Judge, Parbhani on 6.4.2005, the original accused has
preferred this writ petition.
2. Brief facts, giving rise to the present writ petition are as
follows:-
a) On 16.3.2004, the Deputy Executive Engineer, flying squad of
Maharashtra State Electricity Board had visited the shop of the
accused and inspected the electric meter bearing No. 525343
(MTU/PBN-1831) of Elymer make. He had inspected the sanctioned
load and other details. It was noticed that the meter was running
slowly and connected load is more than sanctioned load. Thus, the
Deputy Executive Engineer directed the concerned Officer to replace
the meter. The spot inspection report was prepared in presence of
the accused on the same day. On the basis of said report submitted
by flying squad on 18.3.2004, a bill of Rs.1,55,000/- came to be
issued to the accused. Furthermore, a notice dated 22.3.2004 also
issued directing the accused to deposit entire amount under bill
within three days and on failure, the power supply will be
disconnected. Furthermore, on 24.4.2004, the said meter was
opened before the witnesses and in presence of the accused, and on
inspection, the tampering of meter was noticed. The photographs
were also taken and a joint inspection report was prepared in the
office of flying squad unit. It was also observed that the accused had
illegally extracted electric energy by using other devices
unauthorizedly. Thus, on 27.4.2004 the Deputy Executive Engineer
filed a private complaint before the J.M.F.C., Parbhani against the
petitioner accused for having committed offences punishable under
Sections 135 and 138 of Electricity Act 2003.
b) The learned J.M.F.C. on recording verification statement of
the complainant, by impugned order dated 25.5.2004 directed
issuance of process against the accused under Sections 135 and
138 of Electricity Act 2003. Being aggrieved by the said order, the
accused preferred criminal revision No. 146 of 2005 before the
Sessions Court, Parbhani and the learned 2nd Adhoc Additional
Sessions Judge, Parbhani by order dated 6.4.2005 dismissed the
said revision. Hence, this writ petition.
3. Learned counsel for the petitioner submits that in view of
amendment to Sections 153 and 154 of Electricity Act 2003, the
Magistrate is not empowered to take cognizance of offences
punishable under Sections 135 and 138 of Electricity Act 2003 and
try those offences. The Special Courts are constituted for the trial of
the offences referred to in Sections 135 to 140 and Section 150 and in
view of provisions of Section 153 of the Act 2003, the Special Court
shall consist of single Judge, who shall be appointed by the State
Government with concurrence of the High Court and 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. In its application to the State of Maharashtra, in
Section 153, after sub section (4), the State Amendment (Maharashtra)
added sub-section (5) thereby making it clear that, where no Special
Court for any area or areas has been constituted under sub-section (1),
one or more Additional District and Sessions Judges, as may be
designated by the High Court, for such area or areas, from time to time,
shall exercise the powers of the Special Court under this Act and any
Judge so designated shall be deemed to be a Special Court for the
purpose of this Act.
In view of provision of Section 151 of the Act of 2003, the
Special Courts constituted under Section 153 shall be competent to take
cognizance of the offence without the accused being committed to it for
trial. In view of sub-section (1) of Section 154, every offence punishable
under Sections 135 to 140 and Section 150 shall be triable only by the
Special Court, within whose jurisdiction such offence has been
committed. Despite such observations have been made by this court in
the order dated 2.12.2005 while issuing Rule and even though learned
A.P.P. was directed to obtain the instructions, either from the State or
from the Registrar General, High Court, Appellate Side, Bombay,
whether any Special Courts are established and if not, whether any
notifications have been issued under section 153(5) by the High Court,
one letter dated 22.3.2004 issued by the Registrar (Legal), High Court,
Bombay which is addressed to the Chairman, Maharashtra State
Electricity Board on the subject of issuance of administrative direction
for acceptance of cases involving offences under the Electricity Act
2003 and directions regarding grant of remand etc. produced before
the court, wherein it is stated that the Electricity Board may file
written complaint before the Magistrate through the person
mentioned in Section 151 of the Electricity Act and the Magistrate
shall thereafter follow the procedure, as laid down in Sections 200
and 202 of Cr.P.C. Learned counsel submits that entire approach of
the Magistrate of accepting the complaint and issuing process
thereon is per-se illegal and thus liable to be quashed and aside.
Learned counsel submits that as per the provisions of Section
201 of Cr.P.C. if the complaint is made to the Magistrate, who is not
competent to take cognizance of the offence, he shall, if the
complaint is in writing, return it for presentation to the proper court
with an endorsement to that effect and if the complaint is not in
writing, direct the complainant to the proper court. Even the learned
Magistrate has not followed the procedure as contemplated under
Section 201 of Cr.P.C.
4. Learned counsel for respondent No.2 submits that as per the
provisions of Section 151 of the Act of 2003, the cognizance of an
offence punishable under this Act is barred by the court except upon
a complaint in writing made by the Appropriate Government or
Appropriate Commission or any of their Officer authorized 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. It is
not disputed that the Deputy Executive Engineer of M.S.E.B. is an
officer authorized to file the complaint in writing before the court, as
provided under the provisions of Section 151 of the Act 2003. By
way of proviso to Section 151, it is made clear that Special courts
constituted under Section 153 shall be competent to take cognizance
of an offence without the accused being committed to it for trial.
Learned counsel submits that in view of sub-Section (2) of Section
154 of the Act 2003, if in the course of any enquiry or trial that an
offence punishable under Sections 135 to 140 and Section 150 in
respect of any offence that the case is one which is triable by a
Special Courts constituted under this Act for the area in which such
case has arisen, it shall transfer such case to such Special Court and
thereupon, such case shall be tried and disposed of by such Special
Court in accordance with the provisions of this Act.
In view of provisions of Section 190 of Cr.P.C. the Magistrate
may take cognizance of any offences; (a) upon receiving a complaint
of facts which constitute such offence; (b) upon a police report of
such facts; (c) upon information received from any person other than
a police officer, or upon his own knowledge, that such offence has
been committed. In absence of any notification/ designation of one
or more Additional District and Sessions Judge, as a Judge of the
Special Court, as per sub section (5) of Section 153 of the Act 2003
(State Amendment to Maharashtra), the Magistrate is not debarred
from taking cognizance of offence upon receiving a complaint on
facts, which constitute such offence. Learned counsel submits that in
view of sub-section (2) of Section 154, as referred above, the
Magistrate can transfer such cases to such Special Court and
thereupon such case shall be tried and disposed of by such Special
Court in accordance with the provisions of Act 2003. Learned
counsel submits that in view of provisions of Section 460 of Cr.P.C.
particularly clause (e), if the Magistrate is not empowered by law to
take cognizance of offence under clause (a) or clause (b) of sub
section (1) of Section 190 and done so, this irregularity does not
vitiate the proceedings. Learned counsel submits that in any manner,
this ground alone is not sufficient to quash and set aside the order of
issuance of process passed by the Magistrate in this case.
5. I have also heard learned A.P.P. for the respondent-State.
6. Section 151 of Electricity Act deals with the cognizance of
offence made punishable under the Act. Section 153 provides the
constitution of special court and further Section 154 prescribes the
procedure and power of the Special Court. Sections 151, 153
alongwith sub section (5) i.e. State amendment to Maharashtra and
Section 154 sub section (1) and (2) are relevant for discussion in the
present matter, which are reproduced below:-
“151. Cognizance of offences.- No court shall take cognizance of
an offence punishable under this Act except upon a complaint in
writing made by Appropriate Government or Appropriate
Commission or any of their officer authorized 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.
Provided that the court may also take cognizance of an offence
punishable under this Act upon a report of a police officer filed
under section 173 of the Code of Criminal Procedure, 1973:
Provided further that a special court constituted under section
153 shall be competent to take cognizance of an offence without
the accused being committed to it for trial.
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, for S. 151 substitute the following
section, namely;-
“151. Cognizance of offences.- No Court shall take
cognizance of an offence punishable under this Act except,-
(a) Upon a complaint in writing made by Appropriate
Government, or Appropriate Commissioner or any of their
officer authorized by them or a Chief Electrical Inspector or an
Electrical Inspector or a licensee or the generating company,
as the case may be, for this purpose; or
(b) upon a police report of facts which constitute an offence;
Provided that, such police report is based on the First
Information Report filed by a person who is authorized to file a
complaint under clause (a).”
153. Constitution of Special Courts.- (1) The State Government
may, for the purposes of providing speedy trial of offences referred
to in sections 135 to 140 and section 150, 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).
State Amendment- (Maharashtra) In its application to the
State of Maharashtra, in S. 153 after sub-S.(4), add the
following sub-section, namely:-
“(5) Where No Special Court for any area or areas has been
constituted under sub-section (1), one or more Additional
District and Sessions Judges, as may be designated by the
High Court, for such area or areas, from time to time, shall
exercise the powers of the Special Court under this Act and
any Judge so designated shall be deemed to be a Special
Court for the purposes of this Act.”
154. Procedure and power of Special Court.- (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, every offence punishable under sections 135 to
140 and section 150 shall be triable only by the Special Court
within whose jurisdiction such offence has been committed.
(2) Where it appears to any court in the course of any inquiry or
trial that an offence punishable under sections 135 to 140 and
section 150 in respect of any offence that the case is one which is
triable by a Special Court constituted under this Act for the area in
which such case has arisen, it shall transfer such case to such
Special Court, and thereupon such case shall be tried and
disposed of by such Special Court in accordance with the
provisions of this Act:
Provided that it shall be lawful for such Special Court to act on
the evidence, if any, recorded by any court in the case of presence
of the accused before the transfer of the case to any Special
Court:
Provided further that if such Special Court is of opinion that
further examination, cross-examination and re-examination of any
of the witnesses whose evidence has already been recorded, is
required in the interest of justice, it may resummon any such
witness and after such further examination, cross-examination or
reexamination, if any, as it may permit, the witness shall be
discharged.”
(3) …..
(4) …..
(5) …..
(6) …..”
7. Learned counsel for the petitioner, in view of the provisions of
Section 151 which is about cognizance of offence by the Special
Court without accused being committed it for trial and further as per
the provision of Section 153 wherein the designation of one or more
Additional District and Sessions Judges as a special Court for any
area or areas by the High Court, submits that the order of issuance of
process by the Magistrate by taking cognizance of the complaint of
the offence made punishable under the Electricity Act itself is illegal
and thus liable to be quashed and set aside.
8. Section 190 of Cr.P.C. provides that the Magistrate may take
cognizance of offence, upon receiving a complaint or upon police
report or on information received from the person other than a police
officer, or upon his own knowledge. Thus, cognizance is taken at the
initial stage when the Magistrate peruse the complaint with a view to
ascertain whether the commission of any offence is disclosed.
9. As per the provisions of Section 153 of Electricity Act, the
Additional District and Sessions Judge shall be competent to be
appointed as a Judge of Special court and if no special court has
been constituted under sub-section (1) of Section 153, then in view of
State Amendment (Maharashtra) of sub-section (5) of Section 153,
the High Court may designate one or more Additional District and
Sessions Judges to exercise the powers of Special court under the
Act and any Judge, so designated, shall be deemed to be special
court for the purpose of the Act of 2003. Further, in view of the
provisions of Section 151, more specifically proviso 2, the special
court, as constituted under the provisions of Section 153, shall be
competent to take cognizance of offence without accused being
committed to it for trial. In ordinary course, the special court, being
the court of Sessions, would not take cognizance of the offence
without accused being committed it for trial. The same would be
defeating the object of speedy enquiry or trial of offence explicit
under the provisions of Section 153 of the Electricity Act. Thus, there
is enabling provision under Section 151 proviso as above,
empowering that the special court to take cognizance of offence
without the accused being committed to it for trial. It is also
necessary to note that the power of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded. The same
is also evident from the provisions of sub-section (2) of Section 154
of the Act 2003 that in the course of any enquiry or trial, if it appears
to any Court that an offence punishable under Sections 135 to 140
and Section 150 of the Act 2003 in respect of any offence that the
case is one which is triable by the special court constituted under the
Act of 2003 for the area in which such case has arisen, it shall
transfer such case to such special court, and thereupon such case
shall be tried and disposed of by such Special Court in accordance
with the provisions of this Act.
10. Learned counsel for the petitioner submits that in view of
section 201 of Cr.P.C. if the complaint is made to a Magistrate, who
is not competent to take cognizance of the offence, he shall if the
complaint is in writing, return it for presentation in the proper court
with an endorsement to that effect. It is well settled that expression
“take cognizance” would mean that take the notice of offence and
would include (a) take the notice of offence in judicial capacity with a
view to initiate judicial proceedings against offender in respect of that
offence or (b) take the notice of offence by Magistrate in an executive
capacity or (c) take the notice of offence for other purposes. As per
the provisions of Act of 2003 the powers of the Magistrate to take
cognizance under Section 190 of Cr.P.C. is not excluded and it is
provided that the special Court constituted under the provisions of
Section 153 shall be competent to take cognizance of offence without
the accused being committed to it for trial. Proviso to Section 151 of
the Act of 2003 was inserted w.e.f. 15.6.2007 and the State
Amendment (Maharashtra) to Section 151 of the Act 2003 w.e.f.
23.6.2005 simply provides that the court shall not take cognizance of
offence except upon a complaint in writing made by a person as
detailed in clause (a) of Section 151 (State Amendment -
Maharashtra).
11. At present all Sessions Judges, Additional Sessions Judges
and Adhoc Additional Sessions Judges, appointed to preside over
the special Courts constituted under sub-section (1) of Section 153 of
the Act to exercise jurisdiction and power under the said Act by
notification dated 27.8.2014 issued in concurrence with the Hon’ble
the Chief Justice of this Court. In view of the provision of Section
154 of sub-section (2) of the Act 2003 the Magistrate is bound to
transfer the said cases to such special Court and thereupon such
case shall be tried and disposed of by special court in accordance
with the provisions of the Act of 2003.
12. As per the provisions of Section 460 of Cr.P.C. particularly
clause (e), if any Magistrate is not empowered by law to take
cognizance of offence under clause (a) or clause (b) of sub-section
(1) of Section 190 of Cr.P.C. such irregularity do not vitiate the
proceedings.
13. In view of above discussion, I do not find any substance in the
writ petition. The writ petition is thus liable to be dismissed. Hence,
the following order:-
O R D E R
I. Criminal writ petition is accordingly dismissed with
following directions:-
“The learned Chief Judicial Magistrate, Parbhani in
compliance with the provisions of sub-Section (2) of
Section 154 of the Electricity Act 2003, shall transfer
R.C.C. No.212 of 2004 to such special Court (Sessions
Court at Parbhani) constituted under the Act of 2003 and
thereupon the said case shall be tried and disposed of the
such special Court in accordance with the provisions of
Electricity Act 2003.”
II. The writ petition is disposed of. Rule discharged.
( V. K. JADHAV, J.)
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