Taking Cognisance Of Complaint By Unauthorised Person U/S 151 Electricity Act Vitiates Entire Trial: Bombay High Court

The Bombay High Court held that taking cognizance of an offence by a court based on a complaint lodged by an unauthorised person under Section 151 of the Electricity Act, 2003, goes to the root of the matter and cannot be treated as a mere irregularity. The Court ruled that when the law specifically designates the categories of persons competent to lodge a complaint, any cognizance taken on a report by an unauthorised officer vitiates the entire trial.Justice M.M. Nerlikar was hearing a criminal appeal filed by the State of Maharashtra challenging the acquittal of the respondent by the Additional Sessions Judge. The prosecution alleged that during an inspection of the respondent's ice factory, the flying squad found that the electricity meter was tampered with and running slow by 73.68%, resulting in theft of 8,768 units valued at ₹46,032. Based on this, an FIR was lodged under Sections 135 and 138 of the Electricity Act, and the trial court subsequently acquitted the accused.The Court noted that the FIR had been lodged by a member of the flying squad, who was serving as an in-charge Deputy Executive Engineer. The witness admitted that he had not produced any document authorising him to lodge a report under Section 151 of the Act. Referring to the Maharashtra State Amendment effective from 23 June 2005, the Court noted that the FIR can be lodged in writing by an Appropriate Authority or Appropriate Commission or any of their officer authorised by them or a Chief Electricity Inspector or an Electrical Inspector or Licensee or the Generating Company, as may be the case. Since the complainant did not fall within any of these categories, the FIR was held to be filed by an unauthorised person.“… if designation of PW-1 is seen, which is in-charge Deputy Executive Engineer and therefore, he is not an appropriate Commission or was not authorized by the Chief Electrical Inspector or Electrical Inspector or Licensee or the Generating Company, hence he was not competent to lodge the FIR,” the Court observed.Rejecting the State's contention that such a defect was a mere irregularity, the Court held that taking cognizance in violation of Section 151 is a substantive illegality that vitiates the entire trial. It emphasised that cognizance is not a procedural formality, and when a statute specifically limits who may initiate prosecution, that limitation cannot be bypassed. “Taking cognizance goes to the root of the matter, when the officer himself is not competent to lodge the FIR… taking cognizance is not an empty formality, especially when there is an express bar and the provision expressly provides for the competent officer to lodge the FIR. The aforesaid provision cannot be bypassed in view of rider under Section 151 of the Electricity Act,” the Court observed.The Court concluded that the entire proceeding stood vitiated as the trial court had taken cognizance of an invalid report. Accordingly, the High Court dismissed the State's appeal, reiterating that the illegality in taking cognizance was fatal to the prosecution's case.Case Title: State of Maharashtra v. Gulab Ali Sayyad Bannu [CRIMINAL APPEAL NO.264/2010]Click Here To Read/Download Order

Taking Cognisance Of Complaint By Unauthorised Person U/S 151 Electricity Act Vitiates Entire Trial: Bombay High Court

Saksham Vaishya

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