The contention of the petitioner that such offences would have to be tried by the Sessions Court is consequent upon section 153(3) of the Electricity Act, 2003 which requires the Judge who has been only an Additional District and Session Judge to be appointed as the Judge of the Special Court and under section 155 of the Electricity Act, 2003, under which the Special Court would have the power of the Court of Session.
8. This would be only after the Special Courts are constituted and not before. Hence, when the State Government has not constituted the Special Courts, since the power and the duty of the State Government is not mandatory as denoted by expression 'may', under Rule 11 of the Electricity Rules, 2005, the jurisdiction of the general courts would not stand barred.
9. The learned Sessions Judge, in the impugned order, has considered this legal position clearly and succinctly. He has, therefore, correctly held that the jurisdiction of the Magistrate was not barred and hence the order of bail passed by the Magistrate was not illegal.
10. In fact, in the complaint filed by the brother of the petitioner in the Magistrate's Court, the trial has already proceeded. The application for cancellation of bail is, therefore, correctly considered and rejected.
IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)
IN THE HIGH COURT OF BOMBAY (PANAJI BENCH)
Decided On: 07.01.2014
Appellants: Kashinath Shetye
Vs.
Respondent: State, through its Public Prosecutor and Anr.
Vs.
Respondent: State, through its Public Prosecutor and Anr.
Hon'ble Judges/Coram:R.S. Dalvi and F.M. Reis , JJ.
1. The petitioner is the brother of the complainant who had lodged a complaint before the relevant Magistrate's Court with regard to the offence of theft of electricity meter and other incidental offences against respondent No. 2. The Magistrate concerned directed the complaint to be investigated under section 156(3) of the Criminal Procedure Code. A charge-sheet came to be filed on 26/11/2010. Respondent No. 2 applied for bail. The learned Magistrate granted bail. The petitioner, who is the brother of the original complainant who has since expired, applied for cancellation of bail before the concerned Sessions Judge. However, the learned Sessions Judge did not cancel the bail. The impugned order gives reasons why the application for cancellation of bail was made and why it has not been allowed. The main contention of the petitioner for cancellation of bail is that the learned Magistrate did not have power to grant bail. The bail was granted in the criminal complaint filed by the petitioner's brother himself. Before the learned Magistrate's Court, the application for cancellation of bail was not made on the ground of misuse of privilege of bail, but it was made on the ground of lack of Court's jurisdiction to grant bail.
2. The petitioner has relied upon the provisions contained in sections 153 to 155 of the Electricity Act, 2003, under which Special Courts may be constituted for trying the offences under the Electricity Act. Under section 153(1), the State Government may, by notification, constitute Special Courts. The State Government is not bound to constitute such Special Courts. That would depend upon the exigency and fact situation in a particular State.
3. Under section 153(4)(b), when the Special Court is not constituted or when it is vacant, the urgent business of the Special Court would be disposed of in accordance with the directions of the District and Sessions Judge having territorial jurisdiction over where the Special Court would have been constituted. This would be the power of superintendence of the District and Sessions Court.
4. Under Rule 11 of the Electricity Act, 2003, the jurisdiction of courts, other than Special Courts, would not be barred under section 154(1) till the time the Special Court is constituted under that provision.
5. Hence, if in any State, the State Government has not constituted any Special Court, the jurisdiction of the Magistrate's Court or the Court of Session would be as per general law.
6. In this case, the offences are triable under sections 452, 170, 336, 379 of the Indian Penal Code, read with sections 136, and 138 of the Electricity Act, 2003. The offences under the aforesaid sections of the Indian Penal Code would be triable by the Magistrate's Court under the general law. The Special Court has not been constituted in this State. Hence, they would continue to be triable by the Magistrate's Court.
7. The contention of the petitioner that such offences would have to be tried by the Sessions Court is consequent upon section 153(3) of the Electricity Act, 2003 which requires the Judge who has been only an Additional District and Session Judge to be appointed as the Judge of the Special Court and under section 155 of the Electricity Act, 2003, under which the Special Court would have the power of the Court of Session.
8. This would be only after the Special Courts are constituted and not before. Hence, when the State Government has not constituted the Special Courts, since the power and the duty of the State Government is not mandatory as denoted by expression 'may', under Rule 11 of the Electricity Rules, 2005, the jurisdiction of the general courts would not stand barred.
9. The learned Sessions Judge, in the impugned order, has considered this legal position clearly and succinctly. He has, therefore, correctly held that the jurisdiction of the Magistrate was not barred and hence the order of bail passed by the Magistrate was not illegal.
10. In fact, in the complaint filed by the brother of the petitioner in the Magistrate's Court, the trial has already proceeded. The application for cancellation of bail is, therefore, correctly considered and rejected. The petition is without any substance and accordingly dismissed. Rule discharged. There shall be no order as to costs.
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