These revision applications arise out of common order dated 18th July 2009 passed by the learned Special Judge (Electricity) and 3rd Additional Sessions Judge, Panchmahals, Godhra below Exhibit 4 in Sessions Case No.55 of 2007, 56 of 2007 and 57 of 2007 respectively, whereby the applications of the respondents seeking deletion of the offence under Section 135 of the Indian Electricity Act have been allowed.
Mr.U.A.Trivedi, learned Additional Public Prosecutor for the applicant State of Gujarat has submitted that section 151 of the Electricity Act, 2003 has been amended with effect from 15th June 2007 whereby it has been provided that the court may also take cognizance of an offence punishable under the said Act upon a report of a police officer filed under section 173 of the Code of Criminal Procedure, 1973. It is submitted that despite the aforesaid position, the learned Special Judge has held that the Court could not have taken cognizance pursuant to a complaint which was lodged by a police officer who is not authorized to lodge a complaint in respect of an offence punishable under the Electricity Act in view of the embargo under section 151. It is submitted that section 151 is a procedural provision and as such the same can be applied retrospectively. Hence, the learned Special Judge has erred in holding that a complaint at the instance of a police officer is not maintainable.
Next, it is submitted that there was a clear breach of the provisions of Section 135 of the said Act in view of the fact that the electricity connection had been granted for residential purpose, whereas the same was used for unlawful purpose of slaughter house. It is submitted that in the circumstances, the offence in question falls directly within the ambit of sub-section (1) of Section 135 of the Act and as such the learned Special Judge was not justified in discharging the accused of the offence under section 135 of the Act.
This Court has perused the record of the case and has considered the submissions advanced by the learned Additional Public Prosecutor. Insofar as the question of the provisions of amended section 151 of the Act being retrospective in effect is concerned, it is settled legal position as held by the Apex Court in Union of India v. Sukumar Pyne, AIR 1966 SC 1206 that where provisions are procedural there is no necessity that there should be a special provision to indicate that the new procedural law is retrospective. In the circumstances, it was permissible for the Court to take cognizance even on the basis of a police report under section 173 of the Code. However, the issue would still be as to at whose instance the first information report is required to be filed, whether the same is required to be filed by the officers named in section 151 of the Act or any other person. However, considering the view the Court is inclined to take in the matter, it is not necessary to delve any deeper into the said issue.
The respondents-accused have been charged inter alia with the offence punishable under section 135 of the Electricity Act which falls within the ambit of clause (e) of sub-section (1) thereof viz. uses electricity for the purpose other than for which the usage of electricity was authorised. The offence alleged in the present case has taken place on 17.08.2005 whereas clause (e) of sub-section (1) of section 135 of the Act was brought on the statute book with effect from 15th June, 2007 by Act 26 of 2007. In the circumstances, on the date when the offence took place the said provision was not on the statute book. Under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act charged as an offence, nor be punished to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. Section 135 (1) (e) of the Act is a substantive provision creating a new offence and not merely a provision effecting a change in procedure for trial of a pre-existing substantive offence. The respondents, therefore, cannot be tried for the offence under section 135(1) (e) of the Act as the said provision had been inserted in the Act subsequent to the commission of the offence attributed to the respondents. Prosecuting the respondents for the offence under section 135(1) (e) of the Act would amount to denying them the protection under Article 20(1). In the circumstances, the learned Special Judge was justified in holding that no offence under section 135 of the Electricity Act is made out against the respondents and consequently discharging them of the said offence.
For the foregoing reasons, no case is made out so as to warrant interference by this Court. The applications, therefore, fail and are accordingly, summarily rejected.
[HARSHA DEVANI, J.] parmar* Top