- (1.) Invoking inherent jurisdiction of this Hon'ble High Court, in this application the petitioner prayed for quashing of the Special Case No. 11 (5) 2007 now pending before the Learned Judge, Special Court, E. C. Act and Additional District Judge, Alipore arising out of the impugned FIR before Metiaburz Police Station Case No. 37 of 2007 under Section 135 of the Electricity Act registered pursuant to an order passed under Section 156 (3) of the Code of Criminal Procedure by the Learned Chief Judicial Magistrate, Alipore.
(2.) The Learned Advocate Mr. Sudipto Moitra appearing with Mr. Pratik Bhattacharya in support of this application for quashing contended as follows: (a) Any Magistrate empowered under Section 190 of the Code of Criminal Procedure may order under Section 156 (3) of the Code of Criminal Procedure an investigation into any cognizable case and since in view of the provisions of Section 151 of the Electricity Act, 2003 taking cognizance on a police report in respect of an offence punishable under the Electricity Act is not permissible, no Court is legally empowered to make an order for investigation into an offence punishable under Section 135 of the Electricity Act in exercise of its power under Section 156 (3) of the Code. (b) Embargo under Section 151 of the Electricity Act not only restricts the power of the Court to take cognizance on a police report in respect of any offence punishable under the Electricity Act the same also prohibits any investigation by the notice in terms of the provisions of the Code of Criminal Procedure. (c) In terms of Section 157 of the Code of Criminal Procedure the police is required to file a report immediately after registration of First Information Report and since in view of clear prohibition contained in Section 151 of the Electricity Act, the Court is not empowered to take cognizance on police report, the object behind Section 157 of the Code stands redundant: (d) It appears from the impugned order that immediately after passing of the sale order the Learned Magistrate transfer the case to the Court of the Learned Special Judge constituted under Electricity Act, which clearly shows the Learned Magistrate has no jurisdiction to try the case as such no power to pass any order for investigation in terms of provisions of Section 156 (3) of the Cr. P. C. (e) The Electricity (Amendment) Act, 2007, which amended Section 151 of the Principal Act, i. e. the Electricity Act, 2003 empowering the Court to take cognizance on police report not having retrospective operation has no manner of application in the instant case. The Section 152 of the Electricity Act provides for compounding the offence by the appropriate authority but if the amended Act operate retrospectively same would amount to curtailment of a valuable right made available to the accused. (f) Under the Electricity Act, C. E. S. C. is authorized to lodge a complaint in respect of any offence punishable under the Electricity Act but that never give any option to the C. E. S. C. to make such complaint before any forum according to their own choice. By an order passed in connection with C. R. R. 725 of 2005, the C. E. S. C. was given liberty to take necessary steps against commission of any offence punishable under the Electricity Act in accordance with law and to lodge complaint. Out of personal vengeance C. E. S. C, lodged a complaint under Section 156 (3) of the Code of Criminal Procedure. The impugned order passed under Section 156 (3) of the Code left no scope to the Special Court to consider whether or at all any offence under Electricity Act has been committed or not. Learned Magistrate before passing the impugned order under Section 156 (3) of the Code has not applied his mind to see whether he is empowered to pass any such direction. The allegations made in the application under Section 156 (3) does not make out commission of any offence. Allowing the proceedings to continue would amount to judicial anarchy. In support of his contention Mr. Bhattacharya relied on a decision of this Hon'ble High Court in the case of Shanska Sekhar Panda v. State of West Bengal & Ors. On the other hand, Mr. Joymalya Bagchi, the learned advocate appearing on behalf of the opposite party No. 1 made the following submissions: (a) The power of the Court to take cognizance is not relatable to its power to direct investigation under Section 156 (3) of the Code and cannot be said that such power does not exist in the Magistrate even if he has no power to take cognizance tinder Section 190 (1)(b) of the Code. The bar contained in Section 151 of the Electricity Act. 2003 in taking cognizance on police report cannot take away the power of the Magistrate under Section 156 (3) of the Code. (b) In a case where police submitted final report praying for discharge of the accused from the case still Court can take cognizance under Section 190 (1)(e) of the Code and as such it cannot be said in view of bar contained in Section 151 of the Electricity Act, the Magistrate is not empowered to take cognizance in respect of such offence. (c) Relying on the decision of the Union of Indian v. Major Bahadur Singh, 2006 1 SCC 368, it is submitted that as held in that case once a complaint is filed under Section 156 (3) of the Code and the same is sent to the police, the complaint looses its character and becomes a FIR and police is duty bound to complete investigation and to file police report. (d) "Empowered to take cognizance" in Section 156 (3) of the Code means power of the Court to take cognizance in any of the three ways as envisaged under Section 193 of the Code. (e) In view of the decisions of Division Bench of this Hon'ble High Court in the case of R. K. Bag v. State of West Bengal, investigation in respect of any offence punishable under Electricity Act, 2003 is permissible. (f) According to the Electricity Act, 2003 the Special Court is deemed to be the Court of Sessions in terms of Section 155 of the said Act and there was no provisions in the pre-amended Act empowering Special Court to take cognizance on its own. Thus, it is the Learned Magistrate who has to take cognizance and not the Special Court Therefore, the Learned Magistrate is clearly empowered to take cognizance of the offence punishable under the Electricity Act. (g) Even if the Special Court is only entitled to take cognizance of the offence under Electricity Act an investigation which has already commenced on a First Information Report it respect of a cognizable offence under Section 135 of the Electricity Act cannot be quashed on the mere ground that the Magistrate was laking of Jurisdicticn to pass such order for investigation. (h) In any event during the pendency of this revisional application the Section 161 of the Electricity Act being amended by the Electricity (Amendment) Act, 2007 whereby the Court has been empowered to take cognizance on police report and such amendment being, retrospective in operation at the present moment the question of quashing of the FIR and an investigational proceeding does not at all arise. On the allegations that search and seizure was illegal and without any authority of law, the evidence so collected during such search and seizure, will not become per se inadmissible and can very well be the basis of a lawful prosecution. Mr. Swapan Kumar Mallick, the learned advocate appearing on behalf of the State vehemently opposed the prayer for quashing. Mr. Mallick producing the Case Diary of the case submitted before this Court that sufficient materials have been collected against the petitioner by the police during the investigation of this case showing the commission of the alleged offence. Mr. Mallick specifically draws the attention of this Court to the test report of the expert and submitted that holographic seals affixed on the Meter as well as the ferrule seals were found to be tampered and according to the opinion of the expert by such tampering of seals unauthorized access to registration/internal mechanism of the meter could be gained. The terminal cover plate seal were also found missing. Mr. Mallick further submitted even assuming the investigation was made pursuant to an order passed by a Court lacking jurisdiction but when during such investigation the commission of the offences have been clearly established the question of quashing of either FIR or the result of investigation on mere technicalities does not at all called for. Mr. Mallick in support of his contention relied on the following decisions, viz. Pooran Mal v. Director of Inspection (Investigation),1974 1 SCC (Cri) 345, Radha Kishan v. State of U. P.,1963 AIR(SC) 833, State of Maharashtra v. Natabar Lal Damodar Das Sony,1981 8 SCC(Cri) 98 as well as on the decision of State of H. P. v. Pawan Kumar, 2005 SCC(Cri) 943.
(3.) I have given my anxious consideration to the rival submissions made on behalf of the parties and also perused the Case Diary and evidentiary material collected during the course of investigation and other materials on record. Undoubtedly the offence punishable under Section 135 of the Electricity Act, 2003 being punishable with imprisonment upto 3 years, in terms of Part-II of the First Schedule of the Code of Criminal Procedure relating to the classification of offences against other laws, is a cognizable offence and thus there is no prohibition in law so far as in recording FIR in respect of commission of such offence and the power of police to investigate any case relating to such offence. In this connection it would be sufficient to refer the decisions of this Hon'ble Court in the case of Ranjit Kumar Bag, Additional District & Sessions Judge cum Special Court under Electricity Act, 2003 Tamluk, Purba Mednipore v. State of West Bengal,2006 CHN 445 as well as the decision of this Hon'ble Court relating to C. R. R. No. 2374 of 2007 in the case of Ajay Kumar Ghosh v. State of West Bengal & Anr. The submission of Mr. Moitra that the Learned Magistrate has no power to direct an investigation in exercise of power conferred upon it under Section 156 (3) of the Code of Criminal Procedure since the Learned Magistrate is not empowered under Section 190 of the Code of Criminal Procedure to take cognizance of an offence relating to the commission of any offence punishable under the Electricity Act on a police report is not at all tenable. A plain reading of Section 156 (3) of the Code of Criminal Procedure makes it abundantly clear that exercise of such power pre-supposes the Learned Magistrate passing such order must be empowered under Section 190 of the Code to take cognizance of such offence but the said provisions nowhere 'provided that Magistrate in order to exercise such power under Section 156 (3) of the Code ought to have been empowered to take cognizance on a police report. That being so I am of the clear opinion simply because the Court is not empowered to take cognizance on police report in respect of any offence punishable under the Electricity Act that does not denude the power of the learned Court to pass an order for police investigation under Section 156 (3) of the Code. Furthermore, the Electricity Act, 2003 nowhere empowered any particular Court to take cognizance of an offence punishable under the said Act and only prescribes offences punishable under the said Act are exclusively triable by the Special Court constituted under the said Act. Therefore, no restriction have been imposed upon the Learned Court of a Magistrate to take cognizance of an offence punishable under the Electricity Act under Section 190 of the Code of Criminal Procedure. Be that as it may in view of the fact during the pendency of the instant criminal revisional application the provisions of Section 151 has been amended by the Electricity Act, 2007 whereby Court has been empowered to take cognizance of offences under the Electricity Act on a report of a police officer under Section 173 of the Code of Criminal Procedure, 1973 and such amendment being retrospective in operation as held by this Court in C. R. R. No. 2374 of 2007 in the case of Ajay Kumar Ghosh v. State of West Bengal & Anr. the contentions of Mr. Moitra has no leg to stand. Moreover, having gone through the Case Diary and the evidentiary materials collected by the police during the course of investigation I have no hesitation to say that a prima facie case in respect of an offence punishable under Section 135 of the Electricity Act has Been clearly mode out as against the petitioner and as such even assuming the investigation was undertaken by the police on the basis of an order passed by a Court lacking jurisdiction that will not make the evidence so collected in course of a lawful investigation liable to be shut out. In the instant case, the offence involved bring cognizable in nature so far as the power of the police to investigate into a case involving such offence is beyond question and as such during the course of investigation when commission of the offence has been prima facie established by the evidentiary materials collected by the police, on the mere alleged technicalities that the investigation was undertaken by virtue of an order passed by a Court lacking of jurisdiction is of no consequences. I am of the further opinion where in a case during the police investigation a person is found to have committed any offence made punishable by law, he is liable to face a trial for the same and his liability cannot come to an end even assuming that the police undertook the investigation pursuant to an alleged wrong order of a Court, when the police is otherwise empowered by law to carry out such investigation. In the result this criminal revisional application fails and stands dismissed. All interim order earlier granted stands vacated. Urgent xerox certified copy of this judgment, if applied for, he given to the parties, as expeditiously as possible. The learned advocate of the petitioner prays for stay of the impugned judgment. Prayer for stay considered and rejected.;