Supreme Court of India
VISHAL AGRAWAL & ANR.versusCHHATTISGARH STATE ELECTRICITY BOARD & ANR.
- Citation
- 2014 INSC 64
- Decided
- 29 January 2014
- Disposal
- Dismissed
- Bench
- K S RADHAKRISHNAN
Holding
The amendment to Section 151 is clarificatory and applies to pending complaints, and a police FIR may be filed for cognizable offences under the Electricity Act regardless of the complainant’s authority under Section 151.
Summary
The appellants, consumers of electricity, were accused of theft of electricity and the State Electricity Board lodged a complaint that led to an FIR under Sections 135/126 of the Electricity Act, 2003. The Special Judge took cognizance of the offence, but the appellants challenged the jurisdiction, arguing that an Assistant Engineer lacked authority to make a written complaint under Section 151 and that the court could not take cognizance without such a complaint. The High Court reversed the Special Judge’s order, relying on Rule 12 of the Electricity Rules and the amendment inserting Sections 151(A) and 151(B), which purported to allow police reports under CrPC Section 173 to be the basis of cognizance. The Supreme Court examined whether the amendment was merely clarificatory and whether it applied retrospectively to complaints filed before its enactment. It held that the amendment is clarificatory, applies to pending matters, and that a police FIR can be registered for cognizable offences under the Electricity Act irrespective of the complainant’s authority under Section 151. Consequently, the appeal was dismissed and the Board’s position upheld.
Issues considered
- Whether the amendment to Section 151 of the Electricity Act, 2003, applies retrospectively to complaints filed before its amendment.
- Whether a police FIR can be registered for offences under the Electricity Act when the complaint is not made by an officer authorized under Section 151.
- Whether Section 151 is a substantive bar to police investigation or a clarificatory provision.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 173, s. 195, s. 340, s. 4
- Electricity Act, 2003s. 135, s. 138, s. 151, s. 151A, s. 151B, s. 154, s. 175
- Electricity (Amendment) Act, 2007s. 151, s. 151A, s. 151B
- Electricity Rules, 2005s. Rule 12
Subjects
electricity theftcognizable offenceFIRSection 151Electricity ActCode of Criminal Procedureretrospective amendmentpolice investigationspecial courtcomplaint authority
Judgment
[2014] 1 S.C.R. 857
VISHAL AGRAWAL & ANR. A
v.
CHHATTISGARH STATE ELECTRICITY BOARD & ANR.
(Criminal Appeal No. 275 of 2014)
JANUARY 29, 2014
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
ELECTRIC/TY ACT, 2003:
s. 151rlw ss.1351126 of the Act and r.12 of Electricity c
Rules, 2005 - Theft of electricity - Officers authorized to file
complaint - Cognizance of offences - Plea that Assistant
Engineer had no authority to make a written complaint - Held:
- Amendment to s.151 is clarificatory in nature - Further,
notwithstanding the provisions of s. 151 of the Act, an FIR o
could be filed with the police - Even when a Magistrate is to
take cognizance on a complaint filed before him, that would
not mean that no other avenue is opened and complaint/FIR
cannot be lodged with the police - Offences under Electricity
Act are also to be tried by applying the procedure contained E ,
in the Code - It cannot be said that a complete machinery
- is provided under Electricity Act as to how such offences are
to be dealt with - If the offence under the Code is cognizable,
provisions of Chapter XII containing s. 154 Cr.P. C. and onward
would become applicable and it would be the duty of police F
to register FIR and investigate into the same - Code of
Criminal Procedure, 1973 - ss.4, 154 and 172.
The appellants, who were consumers of electricity
and getting supply thereof from State Electricity Board,
were found committing theft of electricity. The Board G
lodged a complaint at the Police Station. An FIR for
offences punishable u/ss 135/126 of the Electricity Act,
2003 was registered on 31.3.2006. After investigation into
the matter, a challari was filed before the Special Judge,
857 H
858 SUPREME COURT REPORTS [2014] 1 S.C.R.
A who passed orders dated 30.6.2006 taking cognizance of
the offence. The appellants filed petition before the High
Court seeking to quash the proceedings on the ground
that the Assistant Engineer had no authority to make any
written complaint and the Special Judge could not have
B taken cognizance of the offence without complying with
the provisions of s.151 of the Electricity Act, 2003. The
High Court directed the appellants to approach the
Special Judge, who held that since the complaint had not
been made by the officers named in r. 9 of the
c Chhattisgarh State Electricity Rules, 2006, cognizance
thereof could not be taken. Accordingly, the appellants
were discharged from the case. The Board filed a criminal
revision before the High Court by on 4.2.2007. Meanwhile,
the Electricity Act was amended by inserting, inter alia,
0 ss. 151 (A) and 151 (B) to the Act with effect from 15.6.2007.
The High Court reversed the orders of the Special Judge
holding that as per r. 12 of the Rules, the police was
authorised by the Central Government to forward the
complaint received by the officers authorised u/s 151 of
E the Electricity Act to the court concerned and, therefore,
the complaint was validly instituted.
In the instant appeal filed by the accused-
consumers, the question for consideration before the
Court was: whether the amendment in s. 151 of the
F Electricity Act, 2003, which empowered the court to take
cognizance of an offence upon a report made by the
police u/s 173 of the Code of Criminal Procedure, 1973,
would be applicable to the pending complaints filed prior
to the said amendment.
G
Dismissing the appeal, the Court
HELD: 1.1. In view of the judgment of this Court in
Satyendra Rai's case*, conclusively holding that
amendment to s.151 is clarificatory in nature and further
H that notwithstanding the provisions of s. 151 of the Act,
VISHAL AGP-.AWAL v. CHHATTISGARH STATE 859
ELECTRICITY BOARD
an FIR could be filed with the police, the matter stands A
clinched in favour of the Board. [para 17) [871-G]
* Assistant E/ectrial Engineer vs. Satyendra Rai & Anr.
(2012) 1 PLJR 476 - relied on.
8
1.2. As far as the scheme of the Code of Criminal
Procedure is concerned, it demarcates the offences into
two categories, namely, cognizable and non-cognizable
offences. Section 154 of the Code prescribes that in
respect of every offence which is a cognizable one,
information thereof is to be given to an officer in-charge C
of a police station, who shall reduce the same into
writing. Thus, it is the duty and responsibility of the police
authorities to register an FIR. Sub-s. (3) of s. 154 further
obligates the police authorities to investigate the same as
per the manner prescribed in subsequent sections and D
thereafter submit the report to the Magistrate, who is
empowered to take cognizance of the offence on police
report u/s 173 of the Code, on completion of
investigation. [para 19] [878-B-E]
E
1.3. Section 4 of the Code makes it clear that ·
provisions of the Code would be applicable where an
offence under the IPC or under any other law is being
investigated, inquired into, tried or otherwise dealt with.
These offences under any other law could also be F
investigated, inquired into or tried with according to the
provisions of the Code except in case of an offence
where the procedure prescribed thereunder is different
than that under the Code. It is so specifically provided u/
s 155 of the Electricity Act also. Thus, it is not a case
where any special or different procedure is prescribed. G
Rather, the procedure contained in the Code is made
applicable for the offences to be tried under the Electricity
Act as well. [para 21] [871-B-D]
H
860 SUPREME COURT REPORTS [2014] 1 S.C.R.
A M. Narayandas v. State of Kamataka and Ors. 20()4 Cri
LJ-822 - approved.
1.4. Thus, even when a Magistrate is to take
cognizance on a complaint filed before him, that would
8 not mean that no other avenue is opened and the
complaint/FIR cannot be lodged with the police. The
offences under the Electricity Act are also to be tried by
applying the procedure contained in the Code. Thus, it
cannot be said that a complete machinery is provided
under the Electricity Act as to how such offences are to
C be dealt with. In view thereof, if the offence under the
Code is cognizable, provisions of Chapter XII containing
s.154 Cr.P.C. and onward would become applicable and
it would be the duty of the police to register the FIR and
investigate into the same. Sections 135 and 138 of the Act
D only prescribe that certain acts relating to theft of
electricity etc. would also be offences. It also enables
certain persons/parties, as mentioned in s.151, to
become complainant in such cases and file complaint
before a court in writing. When such a complaint is filed,
E the court would be competent to take cognizance
straightaway. However, that would not mean that other
avenues for investigation into the offence which are
available would be excluded. It is more so when no such
special procedure for trying the offences under the
F Electricity Act is formulated and the cases under this Act
are also to be governed by the Code of Criminal
Procedure. [para 23] [881-H; 882-A-E]
1.5. It is significant to note that the notification dated
G 8.6.2005 issued by the Central Government in exercise of
powers u/s 176 of the Act contains the Electricity Rules,
2005. Rule 12 provides, inter alia, that police shall take
cognizance of the offence punishable under the Act on
a complaint, investigate such complaint and forward the
H report to the court for trial. [para 24] [882-F-H; 883-A]
VISHAL AGRAWAL v. CHHATTISGARH STATE 861
ELECTRICITY BOARD
Chacko, A.K. & Anr. Vs. Assistant Executive Engineer, A
K.S.E.B. (2010) 2 KW 569; Biswanath Patra Vs. Divisional
Engineer AIR 2007 Cal 189; Ranjeet Kr. Bag Vs. State of West
Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union
of India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep.
By its Managing Partner D. Thillairaj and Ors. vs. Government B
of Pondicherry rep. by the Inspector of Police MANU/TN/
0584/2010 - disapproved.
Bimla Gupta vs. NDPL 136(2007) DLT 521; and Asish
Kumar Jain vs. State of Jharkhand (2010) Cri LJ 271- C
approved.
Anjan De vs. State of West Bengal (2008) 1 Cal LT 486
- referred to.
Case Law Reference: D
KS.E.B. (2010) 2 KLJ 569 disapproved para 12
AIR 2007 Cal 189 disapproved para 12
(2006) 1 C CrlJ (Cal) 334 disapproved para 12
E
(2007) 2 KLT 733 disapproved para 12
MANU/TN/0584/2010 disapproved para 12
NDPL 136(2007) DLT 521 approved para 13
(2010) Cri LJ 271 F
approved para 13
(2008) 1 Cal LT 486 referred to para 13
(2012) 1 PLJR 476 relied on para 14
2004 Cri LJ 822 approved para 22 G
CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 275 of 2014.
From the.Judgment & Order dated 26.02.2008 of the High
H
862 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Court of Chhattisgarh at Bilaspur in Criminal Revision No. 49
of 2007.
Navin Prakash, Harmeet Ruprah, S.K. Verma for the
Appellants.
B C.S. Vaidyanathan, Jugalkishore Gilda, AAG, Abhimanyu
Singh (For C.D. Singh), Yogmaya Agnihotri, Ashok Kumar
Singh for the Respondents.
The Judgment of the Court was delivered by
c A.K. SIKRI, J. 1. Leave granted.
2. A pure question of law which arises for consideration
is: whether the amendment in Section 151 of the Electricity Act,
2003 (hereinafter referred to as the Act] which empowers the
D Court to take cognizance of an offence upon a report made by
the police under Section 173 of the Code of Civil Procedure
[hereinafter referred to as the Code], would be applicable to
the pending complaints filed before the aforesaid amendment.
To answer this question, scope and interpretation of Section
E 151, as it stood prior to the amendment, also needs to be
considered. This issue has arisen in the following set of facts:
3. The respondent, viz. Chhattisgarh State Electricity Board
(hereinafter to be referred as the 'Board') is the supplier of
F electricity in the State of Chhattisgarh. The appellants are the
consumers of the Electricity and getting supply thereof through
the Electricity connection provided by the Board. As per the
Board, the appellants were found committing theft of the
electricity which was revealed on 23.3.2006 when the Electricity
meter of the appellant was inspected by the Inspection Team
G of the Board. It transpired that instead of the approved 55.204
KW, the appellants were using load of 59.810 KW and the
meter was also tampered with. The Board made a complaint
to the Station House Officer (SHO), Police Station, Civil Lines,
Bilaspur. On the aforesaid allegations with request to the SHO
H to register a FIR against the appellants on the basis of a
VISHAL AGRAWAL v.
CHHATTISGARH STATE 863
ELECTRICITY BOARD [A.K. SIKRI, J.]
complaint dated 30.3.2006, the FIR was registered by the SHO A
on 31,3.2006 being FIR No. 227 of 2006 under Section 135/
126 of the Act. After investigating into the matter, officer: in-
charge of the Police Station filed the challan before the Special
Judge, Bilaspur who passed orders dated 30.6.2006 taking
cognizance of offence under the aforesaid provisions ofthe Act. B
4. Against this order, the appellants filed quashing petition
before the High Court on the ground that the Assistant Engineer
had no authority to make any written complaint and the Special
Judge could not have taken cognizance of the offence without
complying with the provisions of Section 151 of the Act. This C
petition was disposed of by the High Court with a direction to
the appellants to approach and raise the said objection before
the Special Judge. On that basis, the aforesaid plea was
pressed before the Special Judge as well by filing an
application to this effect. The contention of the appellants was D
found convincing by the Special Judge who passed orders
dated 26.9.2006 thereupon holding that since the complaint had
not been made by the officers named in Rule 9 of the
Chhattisgarh State Electricity Rules, 2006, cognizance thereof
could not be taken. As a sequittor, the appellants were E
discharged from the case. At the same time liberty was also
given to the Board to take appropriate action in accordance
with law.
5. The Board did not accept the aforesaid order and F
challenge the same before the High Court by filing Criminal
Revision on 4.2.2007. Within four months thereof the Electricity
Act was amended by inserting, inter alia, Sections 151(A) and
151(8) to the said Act with effect from 15.6.2007. The High
Court has by impugned order dated 26.2.2008, reversed the G
orders of the Special Judge holding that as per Rule 12 of
Chhattisgarh State Electricity Rules, the police has been
authorised by the Central Government to forward the complaint
received by the officers authorised under Section 151 of the
H
864 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Electricity Act to the concerned Court and, therefore, the
complaint was validly instituted.
6. Before we take note of the contentions advanced
before the High Court and the manner in which the High Court
has dealt with the same, it would be apt to reproduce relevant
8
provisions of the Electricity Act as well as Chhattisgarh
Electricity Rules, interpretation whereof is involved in the present
case.
7. Section 151 of the Act, as it existed before the
C amendment, is as follows:
"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
D government or appropriate Commissioner 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."
In exercise of powers conferred by Section 176 of the
E Electricity Act, 2003 the Central Government framed
Electricity Rules, 2005, Rule 12 reads thus:-
·12. Cognizance of the Offence -
(1) The police shall take cognizance of the offence
F
punishableunder the Act on a complaint in writing
made to the police by the appropriate Government
or the appropriate Commission or any of their
officers authorized by them in this regard or a Chief
Electrical Inspector or an Electrical Inspector or an
G authorized officer of Licensee or a Generating
Company, as the case may be.
(2)The police shall investigate the complaint in
accordance withthe general law applicable to the
H investigation of anycomplaint. For the purposes of
VISHAL AGRAWAL v. CHHATTISGARH STATE 865
ELECTRICITY BOARD [A.K. SIKRI, J.]
investigation of the complaintthe police shall have A
all the powers as available under the Code of
Criminal Procedure, 1973.
(3) The police shall after investigation, forward the
report along with the complaint filed under sub-
8
clause (1) to the Court fortrial under the Act.
(4) Notwithstanding anything contained in sub-
clause (1 ), (2) and (3) above, the complaint for
taking cognizance of an offence punishable under
the Act may also be filed by the appropriate C
Government or the appropriate Commission or any
of theirofficers authorized by them or a Chief
Electrical Inspector or an Electrical Inspector or an
authorized officer of Licensee ora Generating
Company, as the case may be directly in the D
appropriate Court.
(5) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, every special court
may take cognizance of an offence referred to in
Sections 135 to 139 of the Act without the accused E
being committed to it for trial.
(6) The cognizance of the offence under the Act shall
not in anyway prejudice the actions under the
provisions of the Indian Penal Code." F
The principal Electricity Act, 2003 was further amended by
the Electricity (Amendment) Act, 2007 and apart from
other amendments in Section 151 of the prinicipal Act was
also amended and provisions in Sections 151, 151 (A), G
151 (B) were inserted. In the Statement of Objects and
Reasons for amending the Act, it was stated as under:
"4. As per the provisions contained in Section 151 of the
Act, the offences relating to theft of electricity, electric lines
and interference with the meters are cognizable offences. H
866 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Concerns have been expressed that the present
formulation of Section 151 stands as a barrier to
investigation of these cognizable offences by the police. It
is proposed to amend Section 15 so as to clarify the
position that the police would be able to investigate the
B cognizable offences under the Act. The expedite the trial
before the Special Court, it is also proposed to provide
that a Special Court shall be competent to take
cognizance of an offence without the accused being
committed to it for trial.
c 1.Short title and commencement. (1) This act may
be called the Electricity (Amendment) Act, 2007.
2. It shall come into force on such date as the
CentralGovernment may, by notification in the
D Official Gazette.appoint:
"15. Amendment of Section 151. - In Section 151 of the
Principal Act, the following provisos shall be inserted,
namely:-
E 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 (2of1974).
F 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.
16. Insertions of new Sections 151-A and 151-8 - After
G Section 151 of the principal act, the following sections shall
be inserted namely:-
"151-A. Power of police to investigate - For the
purposes of investigation of an offence punishable
H under this Act, the police officer shall have all the
VISHAL AGRAWAL v. CHHATIISGARH STATE 867
ELECTRICITY BOARD [A.K. SIKRI, J.]
powers as provided in Chapter XII of the Code of A
Criminal Procedure, 1973 (2 of 1974).
151-B Certain offences to be cognizable and non-
bailable. - Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), an B
offence punishable under Sections 135 to 140 or
Sections 150 shall be cognizable and non-bailable."
8. As per unamended Section 151 of the Act the
cognizance of the offence punishable under the Electricity Act
can be taken only when complaint is made in writing by: C
(i) Appropriate Government, or
(ii) Appropriate Commissioner, or
D
(iii) Any of their officer authorized by them, or
(iv) A Chief Electrical Inspector,
(v) Electrical Inspector,
E
(vi) Licensee, or
(vii) The Generating Company, as the case may be.
9. It was the submission of the appellant that the complaint
could be made to the Court by the appropriate Government or F
any of its officers so authorised (as other persons specifically
named to make such complaints under Section 151 were not
relevant). It was argued that the State of Chhattisgarh has
framed Chhattisgarh State Electricity Rules, 2005 in exercise
of powers under Section 151 of the Act. As per Rule 9 of the G
said Rules, the persons who are authorized to make the written
complaints were either Assistant Electrical Inspector of Chief
Electrical Inspectorate of the State Government or an officer not
below the rank of Junior Engineer of tti~ Board or Distribution
H
868 SUPREME COURT REPORTS [2014] 1 S.C.R.
A Licensee. It was the submission of the appellant that in the
present case the complaint was made by the Assistant
Engineer who was below the rank of Junior Engineer and,
therefore, was not authorised to lodge the complaint under
Section 151. It was also argued that as per the provisions of
B Section 151 of the Act, the complaint was required to be made
in the Court and not to the police and both these mandatory
conditions contained in Section 151 of the Act were not
adhered to.
10. The High Court rejected the aforesaid contention
C holding that Rule 12 of the Electricity Rules authorised the
police to take cognizance of the offence punishable under the
Act and, therefore, it was not necessary for the Board to file
the complaint under Section 151. The High Court also held that
by adding proviso to Section 151 along with insertion of
D Sections 151(A) and 151 (B) vide Electricity (Amendment) Act,
2007, this position was made abundantly clear namely
cognizance of an offence punishable under the Act could be
taken upon a report of police officer filed under Section 173 of
the Code of Criminal Procedure. Contention of the appellants
E that the said amendment came into effect only from 15.6.2007
with the passing of Electricity Amendment Act, 2007 has been
repelled by the High Court taking note of the Statement of
Objects and Reasons for amending the Act which makes it
absolutely clear that the purpose for amendment is to clarify the
F position already prevailed viz. the police would be able to
investigate the cognizable offences under the Act. These are
the reasons given by the High Court for setting aside the order
of the Trial Court and allowing the Revision Petition of the
Board.
G
11. Before us arguments of the parties remained the same.
The submission of learned Counsel for the appellant was that
proviso to Section 151 as well as provisions contained in
Section 151 (A) and 151 (B) of the Electricity Act are substantive
H provisions which could operate only prospectively i.e. the date
VISHAL AGRAWAL v. CHHATIISGARH STATE 869
ELECTRICITY BOARD [A.K. SIKRI, J.]
on which the amendment was notified and could not have A
retrospective operation, more particularly when the provisions
are in the realm of criminal law. He also referred to certain
judgments of few High Courts wherein such a view has been
taken. Learned Counsel for the respondent-Board, on the other
hand, extensively relied upon the reasoning of the High Court B
in the impugned judgment and cited certain decisions of other
High Courts which have taken this very line of action.
12. We may mention at the outset that there is difference
of opinion on this issue among various High Courts. Kerala and C
Calcutta High Court, have taken the view which goes in favour
of the appellant herein, in the following cases:-
Chacko, AK. & Anr. Vs. Assistant Executive Engineer,
K.S.E.B. (2010) 2 KLJ 569; Biswanath Patra Vs. Divisional
Engineer AIR 2007 Cal 189; Ranjeet Kr. Bag Vs. State of We~t D
Bengal (2006) 1 C CrlJ (Cal) 334; Paramasivan vs. Union of
India (2007) 2 KLT 733; Kumaran Chemicals (P) Ltd. Rep.
By its Managing Partner D. Thillairaj and Ors. vs. Government
of Pondicherry rep. By the Inspector of Police MANU/TN/0584/
2010. E
13. A contrary view has been taken by High Courts of Delhi
and Jharkhand in the following cases:
Bimla Gupta vs. NDPL 136(2007) DLT 521; Ashish
Kumar Jain vs. State of Jharkhand (2010) CriLJ 271 F
Interestingly, though Calcutta High Court has taken different
view in the two judgments cited above, which are of the years
2006 and 2007, different view has been taken in the case Anjan
De vs. State of West Bengal (2008) 1 Cal LT 486 which is in G
tune with the judgments of Delhi and Jharkhand High Courts.
14. Before we embark on detailed discussion, it is
pertinent to point out that this Court has already dealt with the
same issue in the case of Assistant Electrial Engineer vs.
Satyendra Rai & Anr. (2012) 1 PLJR 476 wherein it has H
870 SUPREME COURT REPORTS [2014) 1 S.C.R.
A accepted the proposition that FIR with the police can be
registered de hors Section 151 of the Act (unamended) which
provides for filing of the complaint before the Special Court.
The relevant portion of the said judgment is as under:-
Though the report was made by the Assistant Electrical
B
Engineer, it was pointed out before the High Court that
even if the police had decided to file a report under Section
173 Code of Criminal Procedure. Complaining the theft,
the Court could not have taken the cognizance as provided
under Section 151 of the Act and only a complaint should
c have been filed in writing by the appropriate Government
or their officers.
The High Court accepted this contention and held that the
very inception of the case was not in accordance with law
D and, therefore, the first information report in the present
case could not be sustained. This is the judgment which
has fallen for our consideration.
We have heard learned Counsel appearing for the parties
and gone through the appeal.
E
Considering the position in law, it is obvious that the High
Court has completely misconstrued the relevant provision.
Considering the definition of "theft" of electricity in Section
135 of the Act, there could be no difficulty that in the first
F information report, the theft as contemplated in Section 135
of the Act was reported. The only question is as to whether
the police could have investigated on that basis and could
have filed a charge sheet against the Respondent No. 1-
accused, particularly in view of the language of Section 151
G of the Act.
15. In that very judgment this Court also categorically
pointed out that proviso to Section 151 of the Act was
clarificatory in nature. This is so observed in para 9 which is
H as follows:
VISHAL AGRAWAL v. CHHATTISGARH STATE 871
ELECTRICITY BOARD [A.K. SIKRI, J.]
Therefore, considering the language of para 4 of the A
Statement of Objects and Reasons, it is clear that the
amendment brought in is clarificatory in nature and as such
it would take into its ambit even the pending matters and
in that sense it would be a retrospective amendment.
B
16. Yet, there is one more reason given by the Court to
hold that FIR with the police officer would be competent, as can
be found from the following extracts from the said judgment:-
There is one more reason why the High Court's order can
be faulted. The High Court has clearly ignored the First C
Schedule of the Code of Criminal Procedure and more
particularly the second part thereof, which is under the
head "Classification of Offences against other laws". The
second entry reads as follows:
D
If punishable with imprisonment for three years, and
upwards but not more than seven years, then such offences
are held to be cognizable, non-bailable and triable by the
Court of Magistrate of the first class.
Therefore, the High Court ought to have considered this E
provision which makes the first information report
acceptable by the police in the sense that the police could
investigate into the matter and if found guilty could have
also filed a report under Section 173 Code of Criminal
Procedure, before the Court on which the Court could have, F
taken the cognizance of the offence.
17. In view of the aforesaid judgment of this Court,
conclusively holding that amendment to Section 151 is
clarificatory in nature and further that notwithstanding the G
provisions of Section 151 of the Act, a FIR could be filed with
the police, the matter stands clinched in favour of the Board.
However, at the same time we would like to elaborate the view
taken by this Court in the aforesaid judgment.
18. It would be essential to first take note of the relevant H
872 SUPREME COURT REPORTS [2014] 1 S.C.R.
A provisions of the Electricity Act and the Code of Criminal
Procedure. The five provisions of the Electricity Act which are
referred to are Sections 135, 138, 151, 154 and 175 and these
may be reproduced at this stage:
"S. 135. Theft of electricity.
B
(1) Whoever, dishonestly,
(a) taps, makes or causes to be made any connection with
overhead, underground or under water lines or cables, or
c service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter,
current reversing transformer, loop connection or any other
device or method which interferes with accurate or proper
registration, calibration or metering of electric current or
D otherwise results in a manner whereby electricity is stolen
or wasted; or
(c) damages or destroys an electric meter, apparatus,
equipment, or wire or causes or allows any of them to be
E damaged or destroyed as to interfere with the proper or
accurate metering of electricity, so as to abstract or
consume or use electricity shall be punishable with
imprisonment for a term which may extend to three years
or with fine or with both:
F
Provided that in a case where the load abstracted,
consumed, or used or attempted abstraction or attempted
consumption or attempted use-
(i) does not exceed 10 kilowatt, the fine imposed on first
G conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the event
of second or subsequent conviction the fine imposed shall
not be less than six times the financial gain on account of
such theft of electricity;
H
VISHAL AGRAWAL v. CHHATTISGARH STATE 873
ELECTRICITY BOARD [A.K. SIKRI, J.]
(ii) exceeds 10 kilowatt, the fine imposed on first A
conviction shall not be less than three times the financial
gain on account of such theft of electricity and in the event
of second or subsequent conviction, the sentence shall be
imprisonment for a term not less than six months but which
may extend to five years and with fine not less than six B
times the financial gain on account of such theft of
electricity:
Provided further than if it is proved that any artificial means
or means not authorised by the Board or licensee exist for
the abstraction, consumption or use of electricity by the C
consumer, it shall be presumed, until the contrary is proved,
that any abstraction, consumption or use of electricity has
been dishonestly caused by such consumer.
(2)Any office authorised in this behalf by the State D
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 E
unauthorisedly;
(b) search, seize and remove all such devices,
instruments, wires and any other facilitator or article
which [has been or is being], used for unauthorised
use of electricity; F
(c)examine or seize any books of accounts or
documents which in his opinion shall be useful for
or relevant to, any proceedings in respect of the
offence under Sub-section (1) and allow the person G
from whose custody such books of account or
documents are seized to make copies thereof or
take extracts there from 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 H
874 SUPREME COURT REPORTS [2014) 1 S.C.R.
A 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
B domestic place 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 seizure shall
c apply, as far as may be, to searches and seizure under
this act.
Xxxxx
S. 138. Interference with meters or works of licensee.-(1)
0 Whoever,
(a) unauthorisedly connects any meter, indicator or
apparatus with any electric line through which electricity is
supplied by a licensee or disconnects the same from any
E such electric line; or
(b) unauthorisedly reconnects any meter, indicator or
apparatus with any electric line or other works being the
property of a licensee when the said electric line or other
works has or have been cut or disconnected; or
F
(c) lays or causes to be laid, or connects up any works for
the purpose of communicating with any other works
belonging to a licensee; or
G (d) maliciously injures any meter, indicator, or apparatus
belonging to a licensee or willfully or fraudulently alters the
index of any such meter, indicator or apparatus or prevents
any such meter, indicator or apparatus from duly registering;
shall be punishable with imprisonment for a term which may
H extend to three years, or with fine which may extend to ten
VISHAL AGRAWAL v. CHHATTISGARH STATE 875
ELECTRICITY BOARD [AK. SIKRI, J.]
thousand rupees, or with both, and, in the case of a A
continuing offence, with a daily fine which may extend to
five hundred rupees; and if it is proved that any means
exist for making such connection as is referred to in Clause
(a) or such re-connection as is referred to in Clause (b),
or such communication as is referred to in Clause (c), for B
causing such alteration or prevention as is referred to in
Clause (d), and that the meter, indicator or apparatus is
under the custody or control of the consumer, whether it is
his property or not, it shall be presumed, until the contrary
is proved, that such connection, reconnection, c
communication, alteration, prevention or improper use, as
the case may be, has been knowingly and willfully caused
by such consumer.
Xxxxx
D
S. 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 authorised by them or a Chief Electrical Inspector E
or an Electrical Inspector or licensee or the generating
company, as the case may be, for this purpose.
Xxxxx
S. 154. Procedure and power of Special Court.- F
(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 G
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 H
- -
876 SUPREME COURT REPORTS (2014] 1 S.C.R.
A 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
B
act on the evidence, if any, recorded by any court in the
case of presence of the accused before the transfer of the
case of any Special Court:
Provided further that is such Special Court is of opinion
c that further examination, cross-examination and re-
examination of any of the witnesses whose evidence has
already been recorded, is in the interest of justice, it may
re-summon any such witness and after such further
examination, cross-examination and re-examination, if any,
D as it may permit, the witness shall be discharged.
(3) The Special Court may, notwithstanding anything
contained in Sub-section (1) of Section 260 or Section 262
of the Code of Criminal Procedure, 1973 (2 of 1974), try
the offence referred to in Sections 135 to 139 in a summary
E
way in accordance with the procedure prescribed in the
said Code and the provisions of Sections 263 to 265 of
the said Code shall, so far as may be, apply to such trial:
Provided that where in the course of a summary trial under
F this sub-section, it appears to the Special Court that the
nature of the case is such that it is undesirable to try such
case in summary way, the Special Court shall recall any
witness who may have been examined and proceed to re-
hear the case in the manner provided by the provisions of
G the said Code for the trial of such offence:
Provided further that in the case of any conviction in a
summary trial under this section, it shall be lawful for a
Special Court to pass a sentence of imprisonment for a
term not exceeding five years.
H
VISHAL AGRAWAL v. CHHATIISGARH STATE 877
ELECTRICITY BOARD [A.K. SIKRI, J.]
(4) A Special Court may, with a view to obtaining ;the A
evidence of any person supposed to have been directly
or indirectly concerned in or privy to, any offence tender
pardon to such person or condition of his making a full and
true disclosure of the circumstances within his knowledge
relating to the offence and to every other person concerned B
whether as principal or abettor in the commission thereof,
and any pardon so tendered shall, for the purposes of
Section 308 of the Code of Criminal Procedure, 1973 (2
of 1974), be deemed to have been tendered under
Section 307 thereof. c
(5) The Special Court may determine the civil liability
against a consumer or a person in terms of money for theft
-of energy which shall not be less than an amount equivalent
to two times of the tariff rate applicable for a period of
twelve months preceding the date of detection of theft of D
energy or the exact period of theft if determined whichever
is less and the amount of civil liability so determined shall
be recovered as if it were a decree of civil court.
(6) In case the civil liability so determined finally by the E
Special Court is less than the amount deposited by the
consumer or the person, the excess amount so deposited
by the consumer or the person, to the Board or licensee
or the concerned person, as the case may be refunded by
the Board or licensee or the concerned person, as the case F
may be, within a fortnight from the date of communication
of the order of the Special Court together with interest at
the prevailing Reserve Bank of India prime lending rate for
the period from the date of such deposit till the date of
payment.
G
Explanation.-For the purposes of this section, "civil liability"
means loss or damage incurred by the Board or licensee
or the concerned person, as the case may be, due to the
commission of an offence referred to in Sections 135 to
139. H
878 SUPREME COURT REPORTS [2014] 1 S.C.R.
A S. 175. Provisions of this Act to be in addition to and not
in derogation of other laws:- The provisions of this Act are
in addition to and not in derogation of any other law for the
time being in force."
19. As far as the scheme of the Code of Criminal
8
Procedure (hereinafter referred to as the 'Code') is concerned,
it is essential to point out that it demarcates the offences into
two categories, namely, cognizable and non-cognizable
offences. As per Part II of Schedule I of the Code, any offence
punishable with three years or more of imprisonment is a
C cognizable offence. Section 154 of the Code prescribes that
in respect of every offence which is a cognizable one,
information thereof is to be given to an officer in-charge of a
police station, who shall reduce the same into writing. Thus, it
is the duty and responsibility of the police authorities to register
D a First Information Report. Sub-section (3) of Section 154
further obligates the police authorities to investigate the same
as per the manner prescribed in subsequent sections and
thereafter submit its report to the Magistrate, who is
empowered to take cognizance of the offence on police report,
E under Section 173 of the Code, on completion of investigation."
20. Here, the provisions of Section 4 of the Code become
relevant which provide a complete answer to the submission
of the appellant. It reads:
F "4. Trial of offence under the Indian Penal Code and other
laws. -
(1) All offences under the Indian Penal Code (45of1860)
shall be investigated, inquired into, tried and otherwise
G dealt with according to the provisions hereinafter
contained.
(2) All offences under any other law shall be investigated,
inquired into, tried and otherwise dealt with according to
the same provisions, but subject to any enactment for the
H
VISHAL AGRAWAL v. CHHATIISGARH STATE 879
ELECTRICITY BOARD [A.K. SIKRI, J.]
time being in force regulating the manner of place of A
investigation, inquiring into, trying or otherwise dealing with
such offences."
21. It is apparent from the reading of Section 1 that
provisions of the Code would be applicable where an offence 8
under the IPC or under any other law is being investigated,
inquired into, tried or otherwise dealt with. These offences under
any other law could also be investigated, inquired into or tried
with according to the provisions of the Code except in case of
an offence where the procedure prescribed there under is C
different than the procedure prescribed under the Code. It is
so specifically provided under Section 155 of the Electricity Act
also. Thus, it is not a case where any special or different
procedure is prescribed. Rather, the procedure contained the
Code is made applicable for the offences to be tried under the
Electricity Act as well. D
22. We would like to discuss here the judgment in the case
of In M. Narayandas v. State of Kamataka and Ors. 2004
CriLJ 822, which has direct bearing on the issue at hand. The
question arose as to whether Section 195 and Section 340 of E
the Code. affect the power of police to investigate into a
cognizable offence. Section 195 provides for prosecution for
contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents
given in evidence. It also states that no Court shall take F
cognizance of the offences specified therein except on a
complaint in writing of that Court or of some other Court to
which that Court is subordinate. Section 340 of the Code
prescribes the procedure as to how the complaint may be
preferred under Section 195 of the Cr.P.C. Alleging that the G
accused had committed an offence under Section 195, the
complainant had made a complaint to the police and police
had initiated investigation thereon. The accused/respondent
had contended that since the case was filed under Section 195
of the Code it was provisions of Chapter XVI of the Code which H
880 SUPREME COURT REPORTS [2014) 1 S.C.R.
A would apply and not Chapter XII thereof (relating to investigation
by the police). This contention was rejected in the following
manner:
"8. We are unable to accept the submissions made on
behalf of the respondent. Firstly, it is to be seen that the
B
High Court does not quash the complaint on the ground
that Section 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
c 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; 1998 Cri LJ 1104 . In this case it has been held
D as follows:
We are unable to sustain the impugned order of the
High Court quashing the FIR lodged against the
respondent alleging commission of offences under
E Sections 419, 420, 467 and 468 IPC by them in
course of the proceeding of a civil suit, on the
ground that Section 195(1)(b)(ii) CrPC prohibited
entertainment of and investigation into the same by
the police. From a plain reading of Section 195
F CrPC it is manifest that it comes into operation at
the stage when the court intends to take cognizance
of an offence under Section 190(1) CrPC; 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
G
of the Code even if the offence is alleged to have
been committed in, or in relation to, any proceeding
under the Code is not in any way controlled or
circumscribed by Section 195 CrPC. It is of course
true that upon the charge-sheet (challan), if any, filed
H
VISHAL AGRAWAL v. CHHATTISGARH STATE 881
ELECTRICITY BOARD [A.K. SIKRI, J.]
on completion of the investigation into such an A
offence the court would not be competent to take
cognizance thereof in view of the embargo of
Section 195(1)(b) CrPC, but nothing therein deters
the court from filing a complaint for the offence on
the basis of the FIR (filed by the aggrieved private B
party) and the materials collected during
investigation, provided it forms the requisite opinion
and follows the procedure laid down in Section 340
CrPC. The judgment of this Court in Gopalakrishna
Menon v. D. Raja Reddy; 1983 (3) SCR 836 on c
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
0
court and hence it was held that the court could not
take cognizance on such a complaint in view of
Section 195 CrPC.
Not only are we bound by this judgment but we are also in
complete agreement with the same. Section 195 and 340 E
do not control or circumscribe the power of the police to
investigate under the Criminal Procedure Code. Once
investigation is completed then the embargo in Section
195 would come into place and the court would not be
competent to take cognizance. However, that court could F
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 Section 340 of the Criminal
Procedure Code is followed. Thus no right of the
respondent much less the right to file an appeal under G
Section 341, is affected."
23. Thus, the clear principle which emerges from the
aforesaid discussion is that even when a Magistrate is to take
cognizance when a complaint is filed before it, that would not
H
882 SUPREME COURT REPORTS [2014] 1 S.C.R.
A mean that no other avenue is opened and the complaint/FIR
cannot be lodged with the police. It is stated at the cost of
repetition that the offences under the Electricity Act are also to
be tried by applying the procedure contained in the Code. Thus,
it cannot be said that a complete machinery is provided under
B the Electricity Act as to how such offences are to be dealt with.
In view thereof, we are of the opinion that the respondent's
Counsel is right in his submission that if the offence under the
Code is cognizable, provisions of Chapter XII containing
Section 154 Cr.P.C. and onward would become applicable and
c it would be the duty of the police to register the FIR and
investigate into the same. Sections 135 and 138 only prescribe
that certain acts relating to theft of electricity etc. would also be
offences. It also enables certain persons/parties, as mentioned
in Section 151, to become complainant in such cases and file
complaint before a Court in writing. When such a complaint is
0
filed, the Court would be competent to take cognizance
straightway. However, that would not mean that other avenues
for investigation into the offence which are available would be
excluded. It is more so when no such special procedure for
E trying the offences under the Electricity Act is formulated and
the cases under this Act are also to be governed by the Code
of Criminal Procedure.
24. In this backdrop, the notification dated 8.6.2005 issued
by the Central Government in exercise of powers under Section
F 176 of the Electricity Act also requires a mention. Vide this
notification the Electricity Rules, 2005, have been framed and
Rule 12, which is relevant, reads as under:
12 (1) The police shall take cognizance of the offence
punishable under the Act on a complaint in writing
G
made to the police by the Appropriate Government
or the Appropriate Commission or any of their
officer authorized by them in this regard or a Chief
Electrical Inspector or an Electrical Inspector or an
H
VISHAL AGRAWAL v. CHHA'fllSGARH STATE 883
ELECTRICITY BOARD [A.K. SIKRI, J.]
authorized officer of Licensee or a Generating A
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
8
investigation of the complaint, the police shall have
at the powers as available under the Code of
Criminal Procedure, 1973.
(3) The police shall after investigation, forward the report
along with the complaint filed under Sub-clause (1) to the C
Court for trial under the Act.
(4) 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 0
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
authorize~ officer of Licensee or a Generating Company,
as the case may be directly in the appropriate Court.
E
(5) Notwithstanding anything contained in the Code of
Criminal Procedure 1973, every special Court may take
cognizance of an offence referred to in Section 135 to 139
of the Act without the accused being committed to it for
trial." F
25. In view of the aforesaid discussion, we hold that the
decisions of Kerala High Court as well as Calcutta High Court
and Madras High Court in Chacko, A.K. & Anr. Vs. Assistant
Executive Engineer, K.S.E.B. (2010) 2 KLJ 569; Biswanath G
Patra Vs. Divisional Engineer AIR 2007 Cal 189; Ranjeet Kr.
Bag Vs. State of West Bengal (2006) 1 C CrlJ (Cal) 334;
Paramasivan vs. Union of India (2007) 2 KLT 733; Kumaran
Chemicals (P) Ltd. Rep. By its Managing Partner D. Thillairaj
and Ors. vs. Government of Pondicherry rep. by the Inspector H
884 SUPREME COURT REPORTS [2014] 1 S.C.R.
A of Police MANU/TN/0584/2010 do not lay down correct law and
the view taken by the High Court of Delhi in Abhay Tyagi v.
State NCT of Delhi & Anr. and Asish Kumar Jain vs. State of
Jharkhand (2010) CriLJ 271 is hereby approved.
26. As a result this appeal fails and is hereby dismissed
8
with costs.
R.P. Appeal dismissed.
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