Electricity Act; P. Ajayan Vs. State of Kerala [Kerala High Court, 20-08-2011]

Electricity Act, 2003 – Section 151 – Electricity (Amendment) Act, 2007 – Section 15 – The amendment brought about to Section 151 of the Act cannot strictly be held to be clarificatory in nature so as to infer that it was retrospective in its application. It therefore, would not save cognizance taken on police report prior to 15.6.2007.

2011 (3) KLT 825 : 2011 (3) KLJ 700 : ILR 2011 (3) Ker. 759

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Hon’ble MR. Justice V. RAMKUMAR and Hon’ble MR. Justice P.Q. BARKATH ALI

Dated this the 20th day of August 2011

Crl. M.C. No. 70 of 2011 &  Crl. M.C. No. 679 of 2011

For Petitioner: Raju Joseph, Senior Advocate Firoz K. Robin J. Julian Xavier For Respondents: M.S. Breez, Public Prosecutor Pulikool Abubacker, SC, KSEB.

O R D E R

V. Ramkumar, J.

These two cases filed under Sec.482 Cr.P.C. come up for consideration before us consequent on a reference made by a learned Judge of this Court (Justice Thomas P. Joseph). The learned judge was prima facie of the view that the decision reported in Chacko v. Mohandas – (2010 (3) KLT 122) and the two unreported decisions in Radhakrishnan v. State of Kerala (Crl.M.C.No.4824 of 2010) and Premkumar v. State of Kerala (Crl.M.C.No.4361 of 2010) require re-consideration by a larger Bench in view of the fact that the amendment made under

Sec.151 of the Electricity Act, 2003

(hereinafter referred to as “the Act”) by introducing two provisos thereto and inserting Sections 151 A and 151 B with effect from 15-6-2007 being amendment of the procedural law and, therefore, retrospective in its application, cognizance taken by Magistrate on police reports filed prior to 15-6-2007 would be valid.

2. Cahcko’s case was decided by one of us while sitting single and the two unreported decisions were rendered by Justice M. Sasidharan Nambiar.

3. In Crl.M.C.No.70 of 2011 on 5-1-2005 the Walayar police had booked a case against the petitioner therein for offences punishable under Sections 135, 138 and 139 of the Act by registering Crime No.6 of 2006 and subsequently on 26-11-2005 the police filed a final report before the Judicial Magistrate of the First Class-1, Palakkad and on the same day the learned Magistrate took cognizance of the offences and took the case on file as C.P.No.93 of 2005. The case was thereafter committed to the Special Court namely, Addl. Assistant Sessions Court, Palakkad where it was registered as S.C.261 of 2007 and pending before that Court.

4. In Crl.M.C.79 of 2011 the Kalady Police had registered Crime No.331 of 2006 against the petitioner therein for an offence punishable under Sec.135 of the Act on 21-6-2005. Subsequently, a final report was filed on 19-09-2006. On 25-09-2006 the Judicial Magistrate of the First Class, Perumbavoor took cognizance of the offence and took the case on file as C.C.No.12 of 2006. The case was, thereafter, committed to the Addl. Sessions Court, North Paravur (the Special Court) on 21-4-2007 where it was registered as C.C.No.3 of 2009. The case is pending before the Special Court.

5. Both the Crl.M.Cs. were filed for quashing the proceedings before the respective courts on the allegation that cognizance of the offences taken by the respective Magistrates prior to 15-6-2007 with effect from which the Act was amended as per Act 26 of 2007 bad for the reason that the police got the power to investigate and file a final report under Sec.173 (2) Cr.P.C. only with effect from 15-6-2007 and that as on the dates when the Magistrates took cognizance of the offences, the above amendment had not come into force.

6. The questions formulated by the learned Judge for decision by a larger Bench are:-

i) Whether since Sec.151 of the Act is procedural in character, the proviso added thereto and Sec.151-A and 151-B introduced by the amendment Act of 2007 with effect from 15-6-2007 are retrospective in its application saving cognizance taken on reports submitted by the police under Sec.173(2) of the Code before 15-6-2007?

ii) Whether the decisions in Chacko v. Mohandas – (2010 (3) KLT 122) and V. Radhakrishnan v. State of Kerala (Crl.M.C.No.4824/2010 and Premkumar v. State of Kerala (Crl.M.C.No.4361 of 2010) have been rendered correctly in view of the above position ?

iii) Is not cognizance taken in these cases on police reports filed under Sec.173 (2) of the Code prior to 15-6-2010 valid in view of the proviso to Sec.151 and Sec.151-A of the Act introduced by the Amendment Act, 2007?

7. We heard Sr. Advocate Sri. Raju Joseph, the learned counsel appearing for the petitioner in Crl.M.C.No.70 of 2011, Adv. Sri. S.P. Chaly, the learned counsel appearing for the petitioner in Crl.M.C.679 of 2011, Advocate Sri. Pulikkool Aboobacker, the learned counsel appearing for the Kerala State Electricity Board (hereinafter referred to as “the K.S.E.B.” for short) and Advocates M/s. M.S. Breeze and C.S. Hrithwik, the learned Public Prosecutors, who defended the State.

8. Adv. Sri. Pulikkool Aboobacker, the learned Standing Counsel for the K.S.E.B. made the following submissions before us in opposition of the Crl.MCs:- The first proviso to Sec.151 as introduced by the Amendment indicates that the Court is given the power to take cognizance of an offence under the Act upon a police report also filed under Sec.173(2) Cr.P.C. On a perusal of the objects and reasons given to the Amending Act it would be clear that eventhough as per the provisions contained in Section 151 of the Act, the offences relating to theft of electricity etc. are cognizable offences, the said provision as it existed prior to 15-6-2007 stood as a barrier to the investigation of those offences by the police and the proposal to amend the Section was only to clarify the positions. It was to enable the police also to file final reports under Sec.173 (2) Cr.P.C. that the above amendment was made and since it is clarificatory in nature, it should be deemed to be an amendment of the procedural law which is always retrospective unless otherwise indicated in the Amending Act. There is nothing in the Amending Act to suggest that the amendment has only prospective application. The Calcutta High Court has taken a similar view in AjoyKumar Ghosh v. State of West Bengal – (2008 KHC 5433). As per the amendment brought about by Act 26 of 2007, there is only a change in the procedure before the Magistrate, and, therefore, the said amendment will operate retrospectively. A change in the law of procedure does not bring about any change in any of the substantive rights of the parties and no person has a vested right in any particular course of procedure. (See Mt. Kamlabhai and other v. Sheo Shankar Dayal and another – (AIR 1958 SC 915). Where the amendment is clarificatory or curative in character, as in the present case, it always operates retrospectively. (See paragraphs 14, 19 and 21) of Zile Singh v. State of Haryana and others – (AIR 2004 SC 5100). In paragraph 9 of Union of India v. Sukumar Pyne – AIR 1966 SC 1206 the Apex Court has clearly observed that alteration in procedure is always retrospective unless there are good reasons to suggest otherwise and that there is no vested right for any person with regard to the existing procedure when the legislature introduces a new procedure. To the same effect is the decision rendered by the Apex Court in ChannanSingh and another v. Smt. Jai Kaur – AIR 1970 SC 349). Since the amendment introduced by Act 26 of 2007 is retrospective in operation, the Magistrates were fully justified in taking cognizance on a police report and the respective petitioners do not have any right to voice any grievance regarding the cognizance taken.