K.Balakrishhan Nair, J.:-
10. The next important section, With which we are concerned in this case is s. 153, Providing for constitution of special courts. If the state government feel that speedy trial of the offences under ss. 135 to 139 is required, It may constitute special courts, As may be necessary for such area or areas specified in the notification. Sub - ss. (1) and (2) of s. 154 deal with the contingency when a special court is constituted for an area, While the offence triable by the said special court is pending trial before the ordinary court in that area at the relevant time.
11. In the background of the above statutory provisions, The contentions raised by both sides have to be examined. The accused in a criminal case is entitled to raise all defences available to him under law. This right of the accused is recognized by all civilized societies. By way of defence he may also contend that the statute which creates the offence for which he is tried, Is ultra vires and therefore, Void. Likewise, He may also impugn the procedural law made applicable to him. For attacking the relevant statutes, He need not apply for judicial review of them before the high court, By tiling a writ petition. But, He can collaterally attack them in the criminal proceedings. In england even the ordinary magistrate is conceded; power to pronounce on the validity of a subordinate legislation like a regulation or bye - law framed under an act of parliament, If its invalidity is raised by the accused as a defence in a criminal prosecution. See the decision of the house of lords in boddington v. British transport police (1998) 2 all er 203). The relevant portion of the speech of lord irvine lc in the house in the above case reads as follows:
"the question of the extent to which public law defences may be deployed in criminal proceedings require consideration of fundamental principle concerning the promotion of the rule of law and fairness to the defendants to criminal charges in having a reasonable opportunity to defend themselves. However, Sometimes the public interest in orderly administration means that the scope for challenging unlawful conduct by public bodies may have to be circumscribed.
where there is a tension between these competing interests and principles, The balance between them is ordinarily to be struck by parliament. Thus whether a public law defence may be mounted to a criminal charge requires scrutiny of the particular statutory context in which the criminal offence is defined and of any other relevant statutory provisions.
xxx xxx xxx
in my judgment the reasoning of the divisional court in bugg's case suggesting two classes of legal invalidity of subordinate legislation, Is contrary both to the anisminic case and the subsequent decisions of this house to which i have referred. The anisminic decision established, Contrary to previous thinking that there might be error of law within jurisdiction, That there was a single category of errors of law, All of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, If the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, Is of no legal effect whatsoever.
xxx xxx xxx
many different types of challenge, Which shade into each other, May be made to the legality of bye - laws or administrative acts. The decision in the anisminic case freed the law from a dependency on technical distinction between different types of illegality. The law should not now be developed to create a new, And unstable, Technical distinction between substantive' and procedural' invalidity.
i can think of no rational ground for holding that a magistrate's court ha jurisdiction to rule on the patent or substantive invalidity of subordinate legislation or an administrative act under but has no jurisdiction to rule on its latent or procedural invalidity, Unless a statutory provision has that effect. In my judgment, This conclusion in substance revives the distinction between voidable and void administrative acts and is contrary to the decisions of this house to which i have already referred. If subordinate legislation is ultra vires on any basis, It is unlawful and of no effect in law. It follows that no citizen should be convicted and punished on the basis of it. For these reasons, I would overrule bugg v. Dpp.
however, In every ease it will be necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments - of invalidity of subordinate legislation or an administrative act under it. There are situations in which parliament may legislate to preclude such challenges being made, In the interest, For example, Of promoting certainty about the legitimacy of administrative acts on which the public may have to rely. "
the separate, But concurring speech of lord steyn contains a spirited defence of the right of the accused to collaterally attack a subordinate legislation, For the violation of which he is prosecuted in the trial court. The relevant portion of the speech reads as follows:
"since o' reilly v. Mackman decisions of the house of lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individuals sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision. Nor does it apply where a defendant in a civil case simply seeks to defend himself by questioning the validity of a public law decision. These propositions are established in the context of civil cases by four decisions of the house of lords: roy v. Kensington and cheisea and westminster family practitioner committee (1992)) 1 all er 705, (1992) 1 ac 624, Chief adjudication officer v. Foster (1993) 1 all er 705, (1993) ac 754, Wandsworth london bc v. Winder (1984) 3 all er 976 esp at 981; (1985) ac 461 esp at 509 - 510 per lord fraser of tullybelton and mercury communications ltd v. Director general of telecommunication (1996) 1 all er 575 esp at 581, (1996) 1 wlr 48 esp at 57 per lord slynn of hadley. One would expect a defendant in a criminal case, Where the liberty of the subject is at stake, To have no lesser rights. Provided that the invalidity of the byelaw is or may be a defence to the charge a criminal case must be the paradigm of collateral or defensive challenge. And in d. P. P. V. Hutchinson (1990) 2 all er 836, (1990) 2 ac 783, A criminal case, The house of lords allowed a collateral challenge to delegated legislation. The judgment in bugg's case in effect denies the right of defensive challenge in a criminal case. In my view the observations in bugg's case are contrary to authority and principle.
there is, Above all, Another matter which strikes at the root of the decision in buggs case. That decision contemplates that, Despite the invalidity of a byelaw and the fact that consistently with r v. Wicks such invalidity may in a given case afford a defence to a charge, A magistrate court may not rule on the defence. Instead the magistrates may convict a defendant under the byelaw and punish him. That is an unacceptable consequence in a democracy based on the rule of law. It is true that bugg's case allows the defendant to challenge the byelaw in judicial review proceedings. The defendant may, However, Be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the divisional court maybe restricted. He may be denied a remedy on a discretionary basis the possibility of judicial review will, Therefore, In no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge. My lords, With the utmost deference to eminent judges sitting in: the divisional court i have to say the consequences of bugg's case are too austere and indeed too authoritarian to be compatible with the traditions of the common law. In eshugbayi eleko v. Officer administering the government of nigeria (1931) ac 662 at 670, A habeas corpus case, Lord atkin observed that 'no member of the executive can interfere with the liberty or property of a british subject except on the condition that he can support the legality of his action before a court of justice'. There is no reason why a defendant in a criminal trial should be in a worse position. And that seems to me to reflect the true spirit of the common law.
the above principle has been dealt with by the learned authors h. W. R. Wade and christopher forsyth in their "administrative law", Eighth edition, In the following words:
"defensive and collateral pleas:
an important question was whether issues of public law might be raised by way of defence, Or as collateral issues, In proceedings of any kind. On a rigorous interpretation of o'reilly v. Mackman it was argued that a defendant who wished to attack the validity of some official act or order should do so by separate proceedings for judicial review, And apply for an adjournment of the main proceedings meanwhile. But the house of lords, Once again refraining from the extreme course, Held that it would be wrong to deprive a defendant of the opportunity to, Raise any available defence as a matter of right. The question arose when a tenant of a local authority refused to pay an increase of rent on the ground that the local authority's decision raising the rent from $12. 06 to $18. 53 was void for unreasonableness. The local authority applied to strike out this defence to its action in the county court for the rent, And for possession, Claiming that the issue could be raised only by application for judicial review; and it took the tenant to the house of lords on this preliminary question alone. The house held that it could not be an abuse of the process of the court to raise the familiar defence of ultra vires, Which can normally be pleaded as a collateral issue, When the defendant was not able to select the procedure adopted. In any event', Lord fraser said, The arguments for protecting public authorities against unmeritorious or dilatory challenges to their decisions have to be set against the arguments for preserving the ordinary rights of private citizens to defend themselves against unfounded claims'. A defendant is entitled to make his defence as a matter of right, Whereas judicial review proceedings are subject to the discretion of the court.
xxx xxx xxxx
the house of lords' principle will at least apply where the defence is raised against a criminal charge. On a prosecution for violation of a bye - law the crown court or a magistrates' court must decide upon the validity of the bye - law if this is raised by way of defence. On the other hand a firm prosecuted for operating a sex shop without a licence cannot escape by pleading that its application for a licence had been wrongfully refused, Since this cannot alter the fact of the offence. Nor can gipsies escape conviction for disregarding planning enforcement notices by pleading that the local authority was in breach of its duty to provide sites for them, Since that cannot alter the fact that they had no planning permission. "
12. In india, If the validity of any act, Ordinance or regulation or of any provision contained in them is raised in a criminal case and if the trial court feels that resolution of that point is necessary for the disposal of the case, It may refer the matter to the high court for its. Decision under s. 395 of the code, Provided there is no declaration by the high court or by the apex court on the validity of that act, Ordinance or regulation. The relevant portion of s. 395 of the code reads as follows:
"395. Reference to high court: - -
(1) where any court is satisfied that a case pending before it involves a question as to the validity of any act, Ordinance or regulation or of any provision contained in an act, Ordinance or regulation, The determination of which is necessary for the disposal of the case, And is of opinion that such act, Ordinance, Regulation or provision is invalid or inoperative, But has not been so declared by the high court to which that court is subordinate or by the supreme court, The court shall state a case setting out the opinion and the reasons therefor, And refer the same for the decision of the high court.
explanation: - - - in this section, 'regulation' means any regulation as defined in the general clauses act, 1897 (10 of 1897), Or in the general clauses act of a state. "
13. The impugned. Rules will come under the ambit of the term "regulations" in the above section, Going by the definition of "rule" in the general clauses act, 1897 and interpretation and general clauses act, 1125. So, The accused could have moved the magistrate under s. 395, To refer the question of validity to this court. Now an impression has gained currency that in every case where the validity of an act or rule is likely to arise, The party should rush to this 'court. As a result, Hundreds of cases, Even at the time of registration of the crime, Are filed before this court. In many cases, The f. I. R need not necessarily lead to a final report under s. 173 of the code. In some cases, By the time final report is filed, Some of the accused named in the f. I. R. May be deleted. In some other cases, Certain accused may be discharged by the trial court. An accused need not feel panicky, When a crime is registered for an offence under an act, Which is thought to be unconstitutional and rush, To this court. He can safely elect to wait and raise the point of constitutional validity of that act, When the trial commences, So that the magistrate can refer it under s. 395 of the code to this court. This court can also exercise its discretion appropriately and decline to admit such writ petitions filed by the accused, Challenging the validity of the statutory provision under which they are prosecuted, When they are filed even before the commencement of the trial, Unless special grounds exist for admitting them.
14. In this case this court has been moved after the trial has begun. The validity of rr. 11 and 12 of the electricity rules, 2005 actually - arise in. This case. So, The contentions of the petitioner have to be examined on merits.
15. The first point to be decided is regarding the validity of r. 1 i of ext. P2 rules, Which reads as follows:
"11. Jurisdiction of the courts. - - the jurisdiction of courts other than the special courts shall not be barred under sub - s. (1) of s. 154 till such time the special court is constituted under sub - s. (1) of s. 153 of the act."
according to the petitioner, The offences under the act are triable exclusively by the special court constituted under s. 153 of the act. S. 154 (1) 'expressly provides that notwithstanding anything contained in the code of criminal procedure every offence punishable under ss. 135 to 139 shall be triable only by the special court within whose jurisdiction such offence has been committed. So, According to him, His trial should await the constitution of the special court. In the light of ss. 153 and 154, No other court has jurisdiction to try the offences alleged against him. But, R. 11 at authorises other courts also, To try him till a special court is constituted. So, It is submitted that r. 11 is ultra vires of the provisions of ss. 153 and 154 of the act. But, A close reading of the above two sections would show that even in the absence of r11, Until a special court is constituted, The offence against the petitioner is triable by the magistrate's court having jurisdiction over the area where the offence is committed. The said rule only declares what is plainly obvious. S. 153 reads as follows:
"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 139, By notification in the official gazette, Constitute as many special courts as maybe necessary for such area or areas, As may be specified in the notification."
going by sub - s. (1) of s. 153 it ii not mandatory to constitute any special court. But, If the state government feel it necessary to constitute special courts for the speedy trial of the said offences, It may constitute special courts for such area or areas that may be specified in the notification. It means that if; in a particular area, A large number of cases involving the above said offences are reported, Then for a speedy trial of them the state government may constitute a special court for that area. If no such special court is c constituted the magistrate having jurisdiction over the area, In the light of ss. 14 and 177 read with s. 4 (2) of the code, Can try the offences. This position will be clear from sub - ss. (1) and (2) of s. 154 of the act, Which are quoted below:
154. Procedure and power of special court: -
(1) notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974) ; every offence punishable under sections 135 to 139 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 139 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 ease 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 re - summon any such witness and after such further examination cross - examination or re - examination if any, As it may permit the witness shall be discharged. (emphasis supplied)
sub - s. (1) only says when it is read along with s. 153, That once a special court is constituted, Any offence under ss. 135 to 139, Committed within its jurisdiction, Shall be, Triable only by the said special court. Sub - s. (2) would show that when a special court is constituted, Every, Case concerning the above offences, Which is pending before the ordinary magistrate's court, Whatever be its stage of trial, Shall be transferred to the special court and further trial shall be held by the special court so constituted. So, The contention of the petitioner that till the constitution of the special court, No other court has jurisdiction to try him, Is plainly untenable. Therefore, R. 11, Which declares what is obvious, Can, In no way, Be said to be ultra vires of ss. 153 and 154 of the act.
16. The second point to be decided is concerning the validity of sub - rr. (1) to (3) of r. 12. R. 12 reads as follows:
"12. Cognizance of the offence: -
(i) the police shall take cognizance of the offence punishable under the act on a complaint in writing made to the police by the appropriate government or the appropriate commission any of their officer authorized by them in this regard or a chief electrical inspector or an electrical lnspector or an authorized officer of licensee or a generating company, As the case may be.
(2). The police shall investigate the complaint in accordance with the general law applicable to the investigation of any complaint. For the purposes of investigation of the complaint the police shall have all the powers as available under the code of criminal procedure, 197
(3) the police shall, After investigation, Forward the report along with the complaint filed under sub - clause (1) to the court for trial under the act.
notwithstanding anything contained in. Sub - clauses (1), (2). And (3) above, The complaint for taking cognizance of an offence punishable under the act may also be filed by the appropriate government or the appropriate commission or any of their officer authorized by them or a chief electrical inspector or an electrical' inspector or an authorized officer of licensee or a generating company, As the case may be directly in the appropriate court. "
according to the petitioner, The authorisation given to the police, To take cognizance of an office, Is ultra vires of the various provisions of the code. The provision authorising the police to investigate the offence and file report before the magistrate runs counter to the provisions of s. 155 of the code. He submits, S. 176 of the act does not authorise the central government to frame any rules of this nature. Even assuming power is conferred under sub - s. (1) of s. 176, The same cannot be exercised to frame rules, Running counter to the provision in a plenary legislation like the code of criminal procedure, It is submitted.
17. Sub - s. (1) of s. 176 gives general authorisation to the central government to make rules for carrying out the provisions of the at. A rule framed under this section, Even if it does not correlate to any of the specific entries under sub - s. (2) thereof, Will be valid, In view of sib - s. (i), If the same does not run counter to any other provisions of the act or the scheme of the act and also does not run counter to the provisions in any other plenary statute. It is - contended that the provisions in rule 12 run counter to the provisions in s. 151 of the act dealing with cognizance of offences. A reading of s. 151 and the impugned provisions of rule 12 would show that there is no conflict between them. But, On the contrary, The rules provide for the details in the matter of taking cognizance by a court. Normally, The authorities or the officers mentioned in s. 151 do not have the power to arrest the accused or question them. They cannot take any bail bond to ensure the presence of the accused during the trial. They do not have a machinery for investigation and collection of evidence. So, If they directly file a complaint before the magistrate, It may be difficult to successfully prosecute the offender. Therefore, The complaint of the authority concerned or the officer authorised under s. 151, Can be forwarded to the police, The police will investigate into the offence, Collect materials and evidence and forward that complaint to the concerned court, Which can take cognizance under s. 151. So, The magistrate takes cognizance only on the complaint filed by the competent authority or the officer, On it being forwarded by the police. The word "cognizance" used in sub - r. (1) of r. 12 with reference to the police, Cannot be understood as the said technical term is understood under the code of criminal procedure. The dictionary meaning of cognizance is the formal process by which one recognizes or understands something. So, The term "cognizance" used in sub - r. (1) of r. 12 must be understood as authorising the police to look into the complaint and take further action 'on it. Therefore, I am of the view that the impugned provisions of r. 12 quoted above does not run counter to any of the provisions of the electricity act, 2003 or runs counter to the scheme and object of the act.
18. The next question to be decided is whether r. 12 runs counter to the provisions of s. 155 of the code. According to the learned counsel, The offences alleged against the petitioner are non - cognizable, In view of s. 151 of the act, Which provides that the court can take cognizance of an offence only on a complaint in writing filed by the authorities/officers mentioned therein. But, The said assumption is plainly untenable. Going by part ii of the schedule to the criminal procedure code, The offences under ss. 135 and 138 of the act are cognizable and non - bailable, As the punishment for the offences under those sections may extend to three years' imprisonment. Though, The offence under s. 139 of the act may be non - cognizable, Still the same can also be investigated into by the police, By virtue of s. 155 (4) of the code, Which says that
"where a case relates to two or more offences of which at least one is cognizable, The case shall be deemed to be a cognizable case, Notwithstanding that the other offences are non - cognizable."
the learned counsel for the petitioner proceeded on the assumption that where the court cannot take cognizance of the offences under the act on a police report those offences should be treated as non - cognizable offences. The said assumption is unwarranted. Even under the i. P. C., There are cognizable offences, The cognizance of which can be taken by the magistrate, Only on a complaint filed by an authorised officer or a court. In such cases, The police have all the powers under chapter xii of the code to investigate those offences. The offence under s. 188 of the i. P. C. Concerning disobedience of an order legally promulgated by a public servant, Is cognizable. But, No court can take cognizance of an offence under s. 188, Though it is a cognizable offence, Except on a complaint in writing by the public servant concerned or some other public servant to whom he is administratively subordinate, By virtue of s. 195 (1) (a) of the code, Which reads as follows:
"195. Prosecution for contempt of lawful authority of public servants, For offences against public justice and for offences relating to documents given in evidence: -
(1) no court shall take cognizance - -
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the indian penal code (45 of 1860), Or
(ii) of any abetment of, Or attempt to commit, Such offence; or
(iii) of any criminal conspiracy to commit such offence, Except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. "
the same is the case of the offence under 5. 471 of the i. P. C, Which is a cognizable offence. The offence under the said section can betaken cognizance of by the court only in a complaint in writing of the court in relation to which that offence was committed or y some other court to which that court is subordinate, By virtue of s. 195 (1) (b) (ii) of the code. So, The power of the police to investigate a cognizable offence is not, In any way, Controlled by the provisions concerning the power of the court to take cognizance of the same. The power to investigate includes the power to arrest the accused, Question the witnesses and the accused conduct search and seizure collect necessary evidence and file report under s. 173 of the code before the concerned magistrate. It is true, Once the police, After the investigation into the offences under the act, Files the report under s. 173 before the court, It cannot of the offence. The power of the court under s 190 (1) (b) of the code, To take cognizance of an offence under the electricity act, 2003, Is subject to s. 151 of the said act. The view that the restriction under s. 151 of the act will apply only at the stage of taking cognizance and not at the stage of investigation, Is supported by the decision of the apex court in state of punjab v. Raj singh (1998) 2 scc 391). The relevant portion of the judgment reads as follows:
"2. We are unable to sustain the impugned order of the high court quashing the fir lodged against the respondents alleging commission of offences under ss. 419, 420, 467 and 468 ipc by them in course of the proceeding of a civil suit, On the ground that s. 195 (1) (b) (ii) cr. P. C. Prohibited, Entertainment of and investigation into the same by the police from a plain reading of s. 195 cr. P. C it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under s. 190 (1) cr. P. C. And it has nothing to do with the statutory power of the police to investigate into an fir which discloses a cognizable offence, In accordance with chapter xii of the code even if the offence is alleged to have been committed in, Or in relation to, Any proceeding in court. In other wads, The statutory power of the police to investigate under the code is not in any way controlled or circumstances by s. 195 cr. P. C is course true that upon the charge - sheet (challan), If any, Filed, On completion o the investigation such an offence the court would not be competent to take cognizance thereof in view of the embargo of s. 195 (1) (b) cr. P. C, But nothing therein deters the court from filing complaint fort a offence on the basis of the fir (filed by the aggrieved private party) and the material collected during investigation, Provided it forms the requisite opinion and follows the procedure laid down in s. 340 cr. P. C. The judgment of this court in gopalakrishna merton v. D. Raja reddy on which the high court relied has no manner of application to the facts of the - instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of s. 195 cr. P. C."
the above legal position was reiterated by the apex court in m. Narayandas versus state of karnataka (air 2004 sc 555). It was a case involving offences under ss. 468, 470, 471 and 120b of the i. P. C. In the said decision it was held that if the offence is a cognizable offence, The police can investigate and based on the materials collected, The court in relation to which the, Offences have been committed, Can file the complaint under s. 195, So that the court having jurisdiction to try, The offence, Can take cognizance of it. The relevant portion of the judgment reads as follows;
"8. We are unable to accept the submissions made on behalf of the respondents firstly, It is to be seen that the high court does not quash the complaint on the ground that s. 195 applied and that the procedure under chapter xxvi had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise there is no substance in the submission. The question whether sections 195 and 340 of the criminal procedure code affect the power of the police to investigate into a cognizable offence has already been considered by this court in the case of state of punjab v. Raj singh reported in (1998) 2 scc 391."
after quoting the relevant portion of the judgment in raj singh's ease (supra) ,' the apex court added:
"not only are we found (sic - bound) by this judgment but we are also in complete agreement with the same. Ss. 195 and 340 do not control or circumscribe the power of the police to investigate, Under the criminal procedure code. Once investigations is completed then the embargo in s. 195 would come into play and the court would not be competent to take - cognizance. However that court could then file a complaint for the offence on the basis of the fir and the material collected during investigation. Provided the procedure laid down in s. 340, Criminal procedure code is followed. Thus no right of the respondents, Much less the right to file an appeal under s. 341, Is affected."
the legal position, That the statutory restrictions against taking cognizance of an offence by the court will not affect the powers of the police to register a case and investigate into it, Is further reiterated by he apex court in state of karnataka v. Pastor p. Raju (2006 (3) klt 830 (sc) = (2006) 6 scc 728). The relevant portion of the said judgment reads as follows:
"7. The heading of chapter xiv of the code of criminal procedure is 'conditions requisite for initiation of proceedings'. The first provision in this chapter is s. 190 and it deals - with the power, Of the magistrate to take cognizance of offences. There are some other provisions in this chapter which create an embargo ion the power of the court to take cognizance of offences committed by persons enumerated therein except on the complaint in writing of certain specified persons or with the previous sanction of certain specified authorities. S. 196 (1 - a) cr. P. C with which we are concerned here reads as under:
196. (1 - a) no court shall take cognizance of - -
(a) any offence punishable under s. 153 - b or sub - s. (2) or sub - s. (3) of s. 505 of the indian penal code, 1860 (45 of 1860), Or
(b) a criminal conspiracy to commit such offence, Except with the previous sanction of the central government or of the state government or of the district magistrate. "
8. A plain reading of this prevision will show that no court can take cognizance of an offence punishable under s. 153 - b, Subs. (2) or sub - s. (3) of s. 505 of the penal code or a criminal conspiracy; to commit such offence except with the previous sanction of the central government or of the. State government proof the district magistrate. The opening words of the section are no court, Shall, Take cognizance' and consequently the bar created by, The provision is against taking of cognizance by the court. There is no bar against registration of a criminal case or, Investigation by the police agency or submission of a report by the police on completion of investigation, As contemplated by s. 173 cr. P. C. If a criminal case is registered, Investigation of the offence is done and the police submits a report as a result of such investigation before a magistrate without the previous sanction of the central government or of the state government or of the district magistrate, There will be no violation of s. 196 (1 - a) cr. P. C and no illegality of any kind would be committed. "
after laying down the above principle the apex court expatiated on the concept of taking cognizance of an offence by a court. The relevant portion of the judgment, Which deals with this aspect reads as follows:
"10. Several provisions in chapter. Xiv of the code of criminal procedure use the word cognizance. The very first section in the said chapter viz. S. 190 lays down how cognizance of offences will be taken by a magistrate. However, The word 'cognizance' has not been defined in the code of criminal procedure. The dictionary meaning of the word cognizance' is - judicial hearing of a matter'. The meaning o f the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this court on the point is r. R. Chari v. State of u. P. 1951 scr 312; air 1951 sc 207) ,' wherein it was held (scr p. 320)
taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate as such applies his mind to the suspected' commission of an offence'.
11. In darshan singh ram kishan v. State of maharashtra (1971) 2 scc 654: air 1971 sc 2372) while considering s. 190 of the code of 1898, It was observed that (scc p. 656 para 8)
taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a magistrate applies his mind to the suspected commission of an offence. Cognizance, Therefore takes place at a point when a magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint, Or on a police report, Or upon information of a person other than a police officer.
12. In narayandas bhagawandas madhavdas v. State of w. B. (1960) 1 scr 93 : air 1959 sc 1118) it was held that before it can be said that any magistrate has taken cognizance of any offence under s. 190 (1) (a) of the criminal procedure code, He must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the chapter - - proceeding under s. 200 and thereafter sending it for inquiry and report under s. 202. It was observed that there is no special charm or any magical formula in the expression taking cognizance' which merely means judicial application of the mind of the magistrate to the facts mentioned in the complaint with a view to taking further action. It was also observed that what s. 190 contemplates is that the magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The court then referred to the three situations enumerated in sub - s. (1) of s. 190 upon which a magistrate could take cognizance. Similar view was expressed in kishun singh v. State of bihar (1993) 2 scc 16) that when the magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, If proved, Would constitute an offence, Decides to initiate judicial proceedings against the alleged offender, He is said to have taken cognizance of the offence. In state of w. B. V. Mohd. Khalid (1995) i scc 684) this court after taking note of the fact that the expression had not been defined in the code held: (scc p. 696, Para 43)
'in its broad and literal sense, It means taking notice of an offence. This would include the intention of initiating against the offender in respecting judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' indicates the point when a magistrate or a judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the magistrate or the judge. Cognizance is taken of cases and not of persons'.
13. It is necessary to mention there that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the magistrate applies his judicial mind to the facts mentioned in a complaint of to a police report or upon information' received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out. "
in the light of the above decisions of the apex court, Especially those in "raj singh" and m. Narayandas", The police can exercise all the powers it has under chapter xii of the criminal procedure code, To investigate the offences alleged against the petitioner in this case. Even in the absence of r. 12, The police could have investigated the crime registered against the petitioner and filed the final report under s. 173 of the code, As two of the, Offences alleged against him are cognizable offences. So, The contention of the petitioner that the impugned portion of r. 12 is ultra vires of s. 155 of the code, Cannot be accepted.
19. The third point to be decided is whether on the facts of the present case, The magistrate can proceed with the trial of the case. In view of the legal principles, Which have been considered while considering the validity of rule 12, The answer can only be an emphatic "no". In this case, As the licensee has hot filed any complaint in writing before the court, The court bellow stop the trial of the case, In view of the embargo under s. 151. The k. S. E. B can file a complaint before the court below, Based on the facts and the materials disclosed by the police rep - on and make a prayer to the learned magistrate to take cognizance of the offence alleged against the petitioner it will be permissible for any officer of the, K. S. E. B, Who is authorised by it under rule 12 (4) of the electricity rules, 2005 (ext. P2), To file the complaint the k. S. E. B being a legal person, Even in the absence of rule 12 (4), It may be permissible for it to file a complaint through its authorised officers. This view ha$ been taken by the apex court in state of karnataka v. Adimurthy ((1903) 3 scc interpreting s. 50, Of the indian electricity act, 1910, Which is, To certain extent. Similar to s. 151 of the electricity act, 2003. It was held that an authorised officer of the electricity board can move the police on behalf of the board. Upon receipt of such a complaint the trial court shall proceed with the case in accordance with law.
20. Even assuming the offence alleged against the accused is only under s. 139 of the electricity act and therefore not cognizable, Still the investigation conducted by the police or the filing of the report by it will not affect the powers of the court to take, Cognizance of the offence, If the licensee ,a complaint in the light of the police report, To take cognizance of the offence. The apex court in h. N. Rishbud v. State of delhi (air 1955 sc 196) has held that illegalities, If any, Committed at the stage of investigation will not affect the competence of the court to take cognizance. The relevant portion of the said judgment reads as follows:
"a defect or illegality in 'investigation; however serious, Has no direct bearing on - the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in s. 190 cr. P. C. As the material on which cognizance is taken. But, It cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. S. 190, Cr. P. C is one out of a group of sections under the heading conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group muter the same heading, I. E. Sections 193 and 195 to 199.
these latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But s. 190 does not. While no doubt, In one sense, Clauses (a), (b) and (c) of s. 190 (1) are conditions requisite for taking of cognizance, It is not possible to say - that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of s. 190 (1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation s. 537, Cr. P. C. Which is in the following terms is attracted;
'subject to the provisions hereinbefore contained, No finding, Sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, Omission or irregularity in the complaint, Summons, Warrant, Charge, Proclamation, Order, Judgment or other proceedings before or during trial or in any enquiry or other proceedings under this code, Unless such error, Omission or irregularity, Basin fact occasioned a failure of justice. '
1f, Therefore, Cognizance is in fact taken, On a police report vitiated by the breach of a mandatory provision relating td investigation, There can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality the investigation can be shown to have brought about a miscarriage of justices that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in - 'prabhu v. Emperor' (air 1944 pc 73 (c) and lumbhardar zurshi v. The king' (air 1950 pc 26 (d).
these no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, But both the cases clearly show that invalidity of the investigation has no relation to the competence of the court. We are, Therefore, Clearly, Also, Of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, The invalidity of the precedent investigation does not vitiate the result, Unless miscarriage of justice has been caused thereby.
(10) it does not follow, However, That the invalidity of the investigation is to be completely ignored by the court during trial. When the breach of such a mandatory provision is brought to the knowledge of the court at a sufficiently early stage the court while not declining cognizance, Will have to take the necessary steps to get the illegality cured and the defect rectified, By ordering such re - investigation as the circumstances of the an individual case may call for. " (emphasis supplied)
21. The above decision is also an authority for the proposition that if any irregularity takes place at some stage of a case, The same can be and must be cured and the accused should not be allowed to go scot free on technical grounds.
22, Therefore, Though the trial court cannot take cognizance, Based on the report filed by the police under s. 173 of the code, If the k. S. E. B files a complaint in writing, Based on the materials collected by the police and filed along with its final report, The learned magistrate can take cognizance of it. This view is supported by the observations of the apex court in state of punjab v. Raj singh (supra). The relevant portion of the said judgment reads as follows:
"it is of course true that upon the charge - sheet (challan), If any, Filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of s. 105 (1) (b) cr. P. C., But nothing therein deters the court from filing a complaint for the offence on the basis of the fir (filed by the aggrieved private party) and the materials collected during investigation, Provided it forms the requisite opinion and follows the procedure laid down in s. 340 cr. P. C."
it was case where cognizance of the offence could be taken by the trial court only on the written complaint filed by the court, In relation to the proceedings before which, The offence was committed. The same view is reiterated in m. Narayandas versus state of karnataka (supra). The relevant portion of the judgment reads as follows:
"once investigation is completed then the embargo in s. 195 would come into play and the court would not be competent to take cognizance. However, That court could then file a complaint for the offence on the basis of the fir and the material collected during investigation provided the procedure laid down in s. 340, Criminal procedure code is followed."
this was also a case where the complaint has to be filed before the trial court by the court concerned with the proceedings, In relation to which the offence was committed.
23. The contentions urged by the learned counsel for the petitioner, Relying on a. R. Antulay v. R. S. Nayak ((1988) 2 scc 602) are untenable. According to the petitioner, When the statute provides that the accused should be tried by a special court, Trial of him by the ordinary courts will amount to infringement of his rights under art. 21 of the constitution of india. In support of that submission, Certain observations in the above said case are relied on. But, The facts of the case mentioned above are totally different from the facts of this case. Therefore, The observations in antulay's case have no application to the facts of this case.
24. In the result, The writ petition is disposed of with the following directions/orders:
(i) the cognizance of the offences in this case taken by the learned magistrate without a written complaint by the k. S. E. B or its authorised officer is without jurisdiction and therefore, Void. So, The learned magistrate is restrained from proceeding with the case.
(ii) the k. S. E. B or its authorised officer may file a written complaint before the magistrate, In the light of the materials in the report filed by the police and also other materials, If any, Available with it. In that event, The learned magistrate shall take cognizance of the offences and proceed with the case. It will be open to the magistrate to proceed with the trial from the stage where it was stopped. Unless prejudice is found to have been caused to the accused, De novo trial need not be conducted.
(iii) the challenge against rr. 11 and 12 of the electricity rules, 2005 is repelled.
(iv) until special court is constituted for the area, The judicial first class magistrate i, Palakkad can proceed with the trial of c. C. No. 183/2005, Provided a complaint as mentioned in direction (ii) above is filed.
crl. M. C. Nos. 79, 1104, 2029, 2073, 2074, 2083, 2908, 2910, 3621, 3623, 3660, 3852, 3855, 3952, 3980, 4041, 4063, 4324 & 4385/2005, 34, 116. 1500 & 1704/2006:
25. The judgment in the above writ petition will substantially cover the points raised in these criminal miscellaneous cases also. In some cases, For the alleged theft of electricity, The petitioners have been accused of having committed the offence punishable under s. 379 of i. P. C. Electricity is not a movable property, Which can be moved with the dishonest intention of taking it. In the electricity act, 2003 there is no deeming provision similar to the one contained in s. 39 of the indian electricity act, 1910, As it stood before the amendment introduced on 12. 8. 1986. Therefore, The accusation against the petitioners that they have committed the offence under s. 379 of i. P. C. Is unsustainable. It is declared so. This view is supported by the decisions of the apex court in avtar singh v. State of punjab (air 1965 sc 666) and satya narain prasad v. Bhagwan ramdas (1995 supp 4 scc 629). The investigating officers and the courts concerned are 'interdicted front taking any action against the petitioners for the offence under s. 379 of i. P. C., For the reason that they have allegedly committed theft of electricity.
26. In crl. M. C. No. 2910/2005, The learned senior counsel mr. M. K. Damodaran, Relying on sub - ss: (2), (3) and (4) of s. 135 of the electricity act, 2003, Submitted that the offence under s. 135 is non - cognizable. Sub - ss. (2), (3) and (4) of s. 135 are quoted below:
"135. Theft of electricity:
(1).
(2) any officer authorised in this behalf by the state government may - -
(a) enter, Inspect, Break, Open and search any place or premises in which he has reason to believe that electricity has been or is being used unauthorisedly,
(b) search, Seize and remove all such devices, Instruments, Wires and any other facilitator or article which has been or being used for unauthorised use of electricity,
(c) examine or seize any books of account or documents which in his opinion shall be useful for or relevant to, Any proceedings in respect of the offence under sub - s. (1) and allow the person from whose custody such books of account or documents are seized to make copies thereof or take extracts therefrom in his presence.
(3) the occupant of the place of search or any person on his behalf shall remain present during the search and a list of all things seized in the course of such search shall be prepared and delivered to such occupant or person who shall sign the list:
provided that no inspection, Search and seizure of any domestic places or domestic premises shall be carried out between sunset and sunrise except in the presence of an adult male member occupying such premises.
(4) the provisions of the code of criminal procedure, 1973 (2 of 1974), Relating to search and seizures shall apply, As fax as may be, To searches and seizure under this act. "
based on the above provisions the learned senior counsel submitted that the powers of the police to investigate must 15e taken as barred by necessary implication. The power of the police to investigate the offence under s. 135 flows from the fact that it is a cognizable offence. The authorisation of some officers by the state government to take necessary action to detect theft of electricity etc., Will in no way affect the powers of the police in this regard. The above quote provisions cannot be taken as impliedly barring the powers of the police to investigate an offence under s. 135. Those provisions can only be understood as enabling to authorise some other officers also, Like the officers who form the anti power theft squads, To look into the irregularities committed by the consumers. The learned senior counsel also cited the decisions of the apex court in daulat ram v. State of punjab (air 1962 sc 1206), Power crises in nct delhi v. Union of india ((2004) 4 scc 645) and iqbal singh marwah v. Meenakshi marwah (2005 (2) klt (sc) (sn) 46 = (2005) 4 scc 370). Those decisions have no application to the facts of this case.
27. The petitioner in crl. M. C. No. 1500/2006 has a case that as per annexure - e order (no. Apts/bv/1224/05/ekm dated 17. 2 2006), Deputy chief engineer, Anti power theft squad (hq) has directed that the criminal prosecution against him for theft of electricity need not be pursued further. The said decision will bind the k. S. E. B., If he is an officer authorised under r. 12 (4) of the electricity rules, 2005, Unless his decisions is overruled by a superior authorised officer or by the k. S. E. B itself. It is declared so. If he is not an authorised officer, His views in annexure - e shall be adverted complaint to, While taking a decision under s. 151 o the act, To file a by the k. S. E. B. Or its authorised officer against the petitioner.
28. It is ordered that the directions (wand (ii) in para 24 of the judgment in w. P. (c) no. 22972/2006 will govern the criminal miscellaneous cases, Wherein cognizance of the offences has been taken based on the police report.
29. Other contentions raised in, The criminal miscellaneous are not specifically dealt with herein above, Are kept open, Which the concerned petitioners can raise before the trial, Court. In one case it is contended that the petitioner therein is a clerk of the consumer and therefore, Not liable to be prosecuted for theft of electricity. In another case, It is contended that the petitioner is the lessor, Of the premises where the alleged theft of electricity took place and therefore, He is not liable. Such contentions can be canvassed before the trial court.
the crl. M. Cs are disposed of as above. No costs.