- (1.) THIS order shall dispose of the aforesaid revision petition filed under Section 401 read with Sectiion 482 of the Code of Criminal Procedure (Cr.P.C.) read with Section 156 of the Electricity Act, 2003(hereinafter referred to as "the New Act ") challenging the correctness, legality and propriety of the orders dated 09.01.2007, 25.01.2007, 13.02.2007 and 11.05.2007 passed by learned ASJ dimissing the application filed by the petitioner to drop the proceedings and review of the order passed in Complaint Case No.70/2007 titled as BSES Rajdhani Power Ltd. Vs. Sh. Mukul Bhalla & Ors.)
(2.) BRIEFLY stating the facts of the case are that on 04.02.2006, BSES Rajdhani Power Ltd. (hereinafter referred to as "respondent No.5 ") enforcement team conducted an inspection at premises bearing Flat No.3095, D-3, Vasant Kunj, New Delhi belonging to the petitioner. On the basis of this inspection respondent No.5 filed a complaint on the same day with the police alleging stealing of electricity on the basis of which FIR No.43/2006 was registered at P.S. Vasant Kunj. It is thereafter the challan was prepared and filed on 02.08.2006 by the investigating agency. On the basis of challan summons were issued to the petitioner for appearance vide order dated 09.01.2007 to face charges u/s 135, 138 & 150 of Indian Electricity Act, 2003 as well as under Section 379 of IPC. The contents of the complaint read as under: To, The SHO Vasant Kunj, Police Station New Delhi New Delhi dated: 04.02.2006 Subject: Lodging of FIR u/s 135, 138 and 150 of Indian Electricity Act, 2003 and u/s 379 IPC. Sir, On dated 04.02.2006 at about 11.50, BSES Rajdhani Power Ltd. Enforcement team inspected the premise NO.3095, D-III, Vasant Kunj having K. NO.2551G2330182 Registered Consumer Sh. G.B.S. Bhalla. The joint team observed that Meter of this premise is not found installed in the meter box installed on the ground floor of the building. The joint team reached inside the premise No.3095 and observed that meter is tampered and in open condition and found lying in one of the room of this premise. Two person naming Kunal S.o Shyam Sunder R/o P-33, Budh Vihar, Rohini and Deepak S/o Vijay Kumar R/o RZD-34 Nihar Vihar, New Delhi are operating the meter NO.22159594 and installing illegal elements in the meter. Kunal is found holding mobie NO.9312697795 and after checking the call register of this phone it is observed that consumer Sh. G.B.S. Bhalla has called him on his mobie NO.9312697795 through his residential phone No.011-26895402 on different dates as follows: On dated 2/2/06 at 12.18.34 hrs. On dated 3/2/06 at 14.53.43 and 15.16.08 hrs. On dated 4/2/06 at 09.46.58 and 10.50.08 hrs. PCR is called by dialing 100 by Sh. O.P. Kaushik, I.O. vigilance of BSES Rajdhani Power Ltd. Police came at site and whole thing is briefed to them. You are hereby requested to lodge FIR against Sh. G.B.S. Bhalla, Flat No.3095, D-III, Vasant Kunj, New Delhi, Sh. Kunal s/o Shyam Sunder, R/o P-33, Budh Vihar, Rohini, New Delhi and Sh. Deepak, S/o Vijay Kumar, R/o RZD-34, Nihal Vihar, New Delhi u/s 135, 138 & 150 of Indian Electricity Act, 2003, 379 of IPC and other relevant sections. The present petition has been filed on behalf of the petitioner to assail the order taking cognizance of the offence and summoning order passed by the trial Court on the basis of a police report filed by the local police.
(3.) IT is the case of the petitioner that the cognizance taken by the Special Judge in this matter is violative not only of the provisions contained under Electricity Act, 2003 but also of Cr.P.C. It is submitted that: i) As required by the provisions of the Electricity Act, 2003 cognizance could have been taken by the Special Judge only on the basis of the provisions contained under the new Act before the Court concerned. ii) The Trial Court has committed an illegality in having taken cognizance of the offence only on the basis of police report even though no complaint was pending before it after recording the presence of APP. iii) Even though the Trial Court has stated that the cognizance has been taken in accordance with the provisions of Section 210 Cr.P.C., but it was not the case where firstly the complaint was filed and then the challan was filed and thus, the cognizance taken by the Special Judge is illegal. ;