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                                                                                        [REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.275 OF 2014

[Arising out of Special Leave Petition (Criminal) No. 4857 of 2008] Vishal Agrawal & Anr. …............ Appellant(s)

Versus

Chhattisgarh State Electricity Board & Anr. ….............Respondent(s)

J U D G M E N T

A.K. SIKRI, J.

1.Leave granted.

2.A pure question of law which arises for consideration is: whether the amendment  

in Section 151of the Electricity Act, 2003 (hereinafter referred to as the Act] which  

empowers the 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 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 electricity in the State of Chhattisgarh. The  

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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 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 to register a FIR  

against the appellants on the basis of a complaint dated 30.3.2006, the FIR was  

registered by the SHO 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  

of the Act.  

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 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  

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was pressed before the Special Judge as well by filing an application to this effect.  

The contention of the appellants was 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 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 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(B)  to  the  said  Act  with  effect  from  15.6.2007.  The  High  Court  has  by  

impugned order dated 26.2.2008, reversed the 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 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  provisions  of  the  Electricity  Act  as  well  as  Chhattisgarh  

Electricity Rules, interpretation whereof is involved in the present case.

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7.Section 151 of the Act, as it existed before the 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  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 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  punishable under 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 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, 1973.

(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.

(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 Government  or  the  appropriate  Commission  or  any of their officers authorized by them or a Chief Electrical  

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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.

(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 being committed to it for trial.

(6) The cognizance of the offence under the Act shall not in  any way prejudice the actions under the provisions of the  Indian Penal Code.”

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), 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. 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  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.

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 Central   Government  may,  by  notification  in  the  Official  Gazette,   appoint:

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“15. Amendment of Section 151. - In Section 151 of the Principal  Act, the following provisos shall be inserted, namely:-

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 (2 of 1974).

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-B – After 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 under this Act, the  police officer shall have all the powers as provided in Chapter  XII of the Code of 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 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:

(i) Appropriate Government, or (ii) Appropriate Commissioner, or (iii) Any of their officer authorized by them, or (iv) A Chief Electrical Inspector,  (v) Electrical Inspector, (vi) Licensee, or

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(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 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 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  the  Board  or  Distribution  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 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 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  

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the complaint under Section 151. The High Court also held that by adding proviso  

to Section 151 along with insertion of 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 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  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.

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  provisions  which  could  operate  only  prospectively  i.e.  the  date  on  

which the  amendment  was  notified  and could not  have  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  

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taken. Learned Counsel for the respondent-Board, on the other hand, extensively  

relied upon the reasoning of the High Court 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 Calcutta High Court, have taken the  

view which goes in favour of the appellant herein, in the following cases:-

Chacko,  A.K.  &  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 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 of Police MANU/TN/0584/2010.

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

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 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   

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Engineer vs. Satyendra Rai & Anr. (2012) 1 PLJR 476 wherein it has 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 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  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 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.

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 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  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  

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which is as follows:

Therefore, considering the language of para 4 of the 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.

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 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:

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 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 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 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  

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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  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.

(1)   

Whoever, dishonestly,

(a) taps, makes or causes to be made any connection with  overhead, underground or under water lines or cables, or  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  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  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:

Provided that  in  a  case where the load abstracted,  consumed,  or  used  or  attempted  abstraction  or  attempted  consumption  or  

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attempted use-

(i)does not exceed 10 kilowatt, the fine imposed on first  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;

(ii) exceeds  10  kilowatt,  the  fine  imposed  on  first  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 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 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 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 is being], used for unauthorised use of  electricity;

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(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 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 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  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 apply, as far as  may be, to searches and seizure under this act.

Xxxxx

S. 138. Interference with meters or works of licensee.-(1) 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 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

(c) lays or causes to be laid, or connects up any works for  

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the  purpose  of  communicating  with  any  other  works  belonging to a licensee; or (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 extend to three years, or with fine which  may extend to ten thousand rupees, or with both, and, in  the case of 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 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,  communication,  alteration,  prevention  or  improper use,  as the case may be,  has been knowingly  and willfully caused by such consumer.

 Xxxxx

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  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.-  

(1)Notwithstanding  anything  contained  in  the  Code  of  

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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 case of any  Special Court:

Provided further that is 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 in the interest of justice, it may re-summon any  such  witness  and  after  such  further  examination,  cross- examination and re-examination, if any, 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 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 this  sub-section, it appears to the Special Court that the nature of  

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Crl. A. No. 275 of 2014 @ SLP(Crl.) No. 4857 of 2008

Ors.  vs.  Government  of  Pondicherry  rep.  by  the  Inspector  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 with costs.

….…....................................J. [K.S. RADHAKRISHNAN]

…......................................J. [A.K. SIKRI]

New Delhi 29th January , 2014

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