Vishwanath vs The State of Karnataka

Jawad Rahim, J.—Petitioner was not cited as accused in Spl. Case No. 79/08 registered by the police of Gulbarga Electricity Company for the offence punishable u/s 135 of the Electricity Act. He has questioned the order passed by the special judge on 16.7.2011 directing him to be tried along with other accused. Sri S.S. Aspalli, learned HCGP has taken notice.

As could be seen from the records made available, the learned special judge has summoned the petitioner by the following order:

16/7/11

State by Addl. P.P. Accused (OB) by Manikrao, Adv. To hear on 319 of Cr.P.C.

Case called. Adv. Present. Issue summons to Vishwanath Under Sec. 319 of Cr.P.C. 16/8/11

By the said order, it is quite clear the learned judge has not assigned any reasons for summoning the petitioner who was not the accused in the original proceedings.

The provisions of Section 319, Cr.P.C. is very clear. It reads thus:

Power to proceed against other persons appearing to be guilty of offence:

(1) Where in the-course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

Thus it is clear if during the course of enquiry into or trial of, an offence, it appears from evidence that any person not being an accused has committed any offence for which he could be tried together with the accused, the court has the power to summon such person and to put him to trial. To do so undoubtedly a reasoned order is necessary after taking into consideration all attending circumstances, particularly the evidence on record. A slip-shod order of the nature passed in this case certainly does not justify summoning of the petitioner to face trial.

Besides it is necessary to notice, the alleged offence is said to have been committed some time in the year 2005 and initiation of prosecution is based on report of the police officer u/s 173, Cr.P.C. A question would, therefore, arise as to whether the special judge could have taken cognizance of the offence punishable u/s 135 of the Electricity Act without there being a complaint by the appropriate Government, or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be. The trial court will also have to examine whether it could have proceeded to conduct trial without there being any order of committal passed by the magistrate in the absence of such authorization to it under law.

In this regard it is necessary to draw the attention of the special judge to the fact that the proviso to Section 151, Electricity Act was amended, inserting two provisos which permit cognizance could be taken even on police report and directly without the committal order. This is only with effect from 15.6.2007. Prior to insertion of those provisos, Section 151 prohibited the court from taking cognizance of the offence punishable under the provisions of the Electricity Act except on a complaint as referred to in the provision, and only on committal by him as stated. The above issues shall also be examined by the learned special judge. Being of this opinion, the impugned order is set aside. The case is remanded to the trial court to reconsider the material on record, firstly to decide whether initiation of prosecution is in accordance with law, and secondly, whether the evidence on record justifies proceeding against the petitioner to try him along with the accused in exercise of power u/s 319, Cr.P.C. Consequently, the order dated 16.7.2011 is set aside.

The petition is disposed of in the above terms.