INTRICACIES ON NEWLY AMENDED SECTIONS 462-G TO 462-P
(OFFENCES RELATING TO ELECTRICITY) OF
By:
SHAHID NADEEM BUTT
Civil Judge 1st Class,
Magistrate Section 30,
Mandi Baha-ud-Din
The Theft of Electricity has been proved to be a major reason
of Load Shedding in
To coup with this day by day increasing menace of theft of electricity, under CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013 (NOW SUBSTITUTED THROUGH CRIMINAL LAW AMENDMENT ACT, 2016) the amendments have been made in the Code of Criminal Procedure, 1898. The Schedule II of Cr.P.C, has also been amended. In shape of new Chapter XVII-B of PPC, Sections 462-G to Section 462-P of PPC have been added in Pakistan Penal Code 1860.
However, the new amendment is unfortunately having an inherent defect as the same consists upon self-contradictory provisions.
While amending the schedule ii of Cr.P.C, the offences under Sections 462-H to 462-M of PPC have been mentioned as cognizable however, Under Section 462-O of Chapter XVII-B of PPC the cognizance of an offence under Sections 462-H to 462-M of the said law can only be taken by the Court on complaint filed by the duly authorized officer (not below the Grade-17) of the Government or the Distribution Company.
Number of FIRs have been registered in the different parts of the country under the amended law. Furthermore keeping in view the definition of Court given in Section 462 G (a) of PPC as the Court of Sessions designated as Electricity Utilities Court, in most Districts of Punjab the Courts of learned Additional Sessions Judges have been designated as Electricity Utilities Court, however in some Districts the Courts of Magistrate Section 30 have been designated to try these cases.
The above mentioned contradictions have created two questions in the minds of legal fraternity.
i. When the term Court has been defined in Section 462-G (a) of PPC as the Court of Sessions designated as Electricity Utilities Court, whether the cases can be tried by the District and Sessions Judges and Additional Sessions Judges or the same can be tried by the Magistrates Section 30 also.
ii. When Under Section 462-O of Chapter XVII-B of PPC the cognizance of an offence under Sections 462-H to 462-M of the same law can be taken by the Court only on complaint filed by the duly authorized officer (not below the Grade-17) of the Government or the Distribution Company whether an FIR can be registered.
These anomalies, their effects and the solution thereof shall be discussed in the next few pages.
It is generally considered that as per amended Schedule II of Cr.P.C, “Court of Session designated as Electricity Utilities Court” means the Court of District and Sessions Judge or the Additional Sessions Judge, and Magistrate Section 30 cannot be designed to hear these cases.
The law under discussion has been introduced through CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013.
The term Court has been defined in Section 462-G of amended law (PPC) in the following words.
(a) “Court” means the Court of sessions designated as Electricity Utilities Court empowered to take cognizance of an offence under this Chapter;
The term used in the above mentioned provision has also been used in the amended Schedule II of Cr.P.C. However it cannot be construed that the trials can only be conducted by the Court of Worthy District and Sessions Judge or the Learned Additional Sessions Judge. The law under discussion is piece of amendments in General Law (Cr.P.C, and PPC). Hence all principles of procedure of General Law are to be followed. There is no cavil in the proposition that all cases in which the punishment is other than Death shall be tried by the Magistrate Section 30 though as per schedule ii of Cr.P.C, the same have been mentioned as triable by the Court of Sessions. For ready reference Section 30 of Cr.P.C, is reproduced as under:--
30. Offences not punishable with death. “Notwithstanding anything contained in Sections 28 and 29, the Provincial Government may invest any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death.”
Under the above mentioned principle of law the cases falling under Sections 319,320,322,324,395, 397, etc. of PPC are being tried by the Courts of Magistrate Section 30 despite the fact that in Schedule II of Cr.P.C, all these cases have been mentioned as triable by Court of Sessions.
The law under discussion being an amendment in the schedule of Cr.P.C, having no significance or special character different from the above mentioned principle of law. Magistrate Section 30 does have jurisdiction to try these cases as the punishment of offences U/S 462-H to 462-M is other than death sentence.
Now I will advert towards the other controversy regarding registration of FIRs in these cases.
The FIRs have been registered on the pretext that in the amended Schedule II of Cr.P.C, these offences have been mentioned as cognizable. However through CRIMINAL LAW (AMENDMENT) ORDINANCE, 2013 Section 462-O has also been inserted in PPC. For ease of reference the relevant provision is reproduced.
“462-O. Cognizance.--(1) The Court shall try an offence punishable under this Chapter.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or any other law for the time being in force, the Court shall not take cognizance of an offence under this Chapter except on a complaint made, with reasons to be recorded in writing along with full particulars of the offence committed under this Chapter, by duly authorized officer (not below Grade 17) of the Government or the distribution company, as the case may be.”
Keeping in view the amended Schedule II of Cr.P.C, through which the offences have been made cognizable and Section 462-O of PPC through which the restriction has been imposed upon the Court from taking cognizance of the case except on a complaint made, with reasons to be recorded in writing along with full particulars of the offence committed under this chapter by duly authorized officer (not below Grade 17) of the Government or the distribution company, as the case may be, following points are necessarily to be determined.
(i) Whether the application made to SHO for registration of FIR can be considered as complaint as mentioned in Section 462-O of PPC
(ii) If there is a contradiction between the Schedule of Cr.P.C, and any statutory provision of PPC which provision shall prevail.
After going through the statutes and the case law the above mentioned points can be determined in the following terms.
“Whether the application made to SHO for registration of FIR can be considered as complaint as mentioned in Section 462-O of PPC”
The term “complaint” has itself been defined in Section 4 (h) of Cr.P.C. For ready reference Section 4(h), Cr.P.C., is reproduced as under:--
(h) “Complaint”. “Complaint” means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.”
It is quite clear from the bare perusal of definition that a complaint can only be made to a Magistrate. Hence, the application submitted before the SHO for registration of FIR cannot be considered as a complaint under the definition mentioned above.
The manner of filing of a complaint to Magistrate has been provided in Section 200 of the Cr.P.C. Section 200 [(aa) of Cr.P.C, deals with the complaints made by a public servant acting or purporting to act in the discharge of his official duties through which the only exception given to a public servant is to the extent that his statement shall not be recoded at the time of making of complaint, if the complaint is made in writing. No other exception or special character has been given to a public servant.
For ready reference, Section 200 (aa) of Cr.P.C, is reproduced as under:--
[(aa) “when the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties.”
In these circumstances, it is quite clear from the perusal of the definition of complaint U/S 4(h) of Cr.P.C, and the procedure of filing of complaint by the public servant as mentioned in Section 200 (aa) of Cr.P.C, that a public servant shall file the complaint before the Magistrate with the only exception that if the same has been made in writing, his statement shall not be recorded. By no means the application made to the SHO for the registration of FIR can be considered as a complaint mentioned in Section 462-O of PPC.
Here comes the second point of determination i.e,
“If there is a contradiction between the Schedule of Cr.P.C, and any statutory provision of PPC which provision shall prevail.”
It transpires from the above discussion
that there is a contradiction between the Schedule II of Cr.P.C, where the
offences U/S 462-H to 462-M, PPC have been mentioned as cognizable and in the
statutory provision i.e. 462-O of PPC which provides that Court shall not take
cognizance of a case unless a complaint is made by the officer not below the
Grade-17. The Hon'ble Sindh High Court, has been
pleased to discuss this proposition in the case titled SHAHNAWAZ
JUNEJO—Applicant versus THE STATE—Respondent cited as 2001 Y L R 197 [
“It is well-settled law that if there is a conflict between the provisions of any Act or Ordinance and the Schedule thereto, the main provisions of such Act or Ordinance would prevail.”
The guidelines given by the Hon'ble High Court make it clear that in case of any contradiction between the statutory provision and the schedule, the statutory provision shall prevail. In the matter under discussion, it has already been mentioned above, that the statutory provision (Section 462-O, PPC) restricts the Court from taking cognizance in these offences except on a complaint in writing by a public servant not below the rank of Grade 17. The FIRs in these circumstances cannot be registered.
Furthermore, Section 195(1)(a) of Cr.P.C, is a provision identical to Section 462-O of PPC and the same is reproduced as under:--
Section 195.
(1) No Court shall take cognizance:
“of any offence publishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.”
The cases falling in category mentioned in Section 195(1)(a) of Cr.P.C, have been discussed in number of judgments of the Hon'ble High Courts and guidelines have been given in such like cases.
For instance, in the case titled M. SHARIF— Petitioner Versus S.H.O. and others—Respondents
cited as 2012 M L D 114 [
“Even if the offence under Section 188, P.P.C. has been declared cognizable the fact remains that no amendment is made in the corresponding provision of Section 195(1)(a), Cr.P.C. till date. Section 195(1)(a), Cr.P.C. provides that no Court is competent to take cognizance of the offence under Section 172, P.P.C. to 188, P.P.C. unless a complaint in writing was made by the public servant concerned or by some other public servant to whom he was subordinate. Admittedly, instant F.I.R. is lodged on the statement of private person, namely, Falak Sher complainant, therefore, registration of impugned F.I.R. is violative to the provisions of Section 195(1)(a), Cr.P.C. and thus void abinitio.”
This proposition has also been discussed in the following judgments i.e.
• 1991
MLD 2090 [
• PLD
2005
• PLD
1996
• 1996 P Cr. LJ 483 [Peshawar] Syed ABDUL REHMAN SHAH and 25 others—Petitioners Versus STATION HOUSE OFFICER, POLICE STATION CITY, MANSEHRA and another—Respondents.
The upshot of the above discussion is that keeping in view Section 462-O of PPC and the judgments cited above, the FIR in these cases cannot be registered. Hence, the registration of FIR is void abinitio. The private complaint under Section 462-O of PPC read with Section 200[(aa) of Cr.P.C under the offences falling in Section 462-H to 462-M can only be filed.
It should also be kept in mind that the new amendments have not created an embargo upon the Electricity Distribution Companies from making applications U/Sections 39 to 47 of the Electricity Act, 1910 for registration of FIR. Hence, if the Electricity Distribution companies deem it necessary, they may make applications for registration of FIRs under the provisions of Electricity Act, 1910.
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