Mechanical rejection of a police final form without considering exculpatory materials vitiates cognizance.

A raid was conducted at premises jointly occupied by the petitioners on the basis of secret information.

The prosecution alleged that, despite disconnection of the electricity supply for non-payment of dues, the petitioners were illegally abstracting electricity through three PVC wires, constituting theft under Section 135 of the Electricity Act, 2003.

During investigation, the Investigating Officer found that the premises comprised three flats with separate electricity meters, including one meter in the name of petitioner no. 1 and two in the names of third parties.

The outstanding dues of Rs. 96,227/- allegedly payable in the name of the petitioners’ father had already been paid on 17 July 2013, and the electricity-related documents produced by the petitioners were verified as genuine.

The police submitted a final form finding insufficient evidence and did not send the petitioners for trial.

Nevertheless, the Chief Judicial Magistrate, Araria, by order dated 2 November 2015, differed from the final form and took cognizance against the petitioners under Section 135 of the Electricity Act.

The petitioners challenged the cognizance order under Section 482 of the Code of Criminal Procedure, 1973.

Whether the Chief Judicial Magistrate was justified in differing from the police final form and taking cognizance against the petitioners under Section 135 of the Electricity Act.

Whether the continuation of the criminal proceedings, in the circumstances disclosed by the investigation, amounted to an abuse of the process of the court.

Section 135 of the Electricity Act, 2003 criminalises dishonest abstraction, consumption or use of electricity.

At the stage of taking cognizance, a Magistrate may differ from a police final form if the case diary discloses sufficient material indicating a prima facie offence; however, such departure must reflect an application of judicial mind and cannot be mechanical.

Proceedings may be quashed under the inherent jurisdiction of the High Court where the materials collected during investigation do not disclose a prima facie case and continuation of the prosecution would constitute an abuse of the process of the court.

The High Court found that the investigation had produced material favourable to the petitioners: the premises contained separately metered flats, the relevant electricity documents were verified as genuine, and the alleged outstanding dues had already been paid.

The police, after investigation, therefore submitted a final form for want of evidence.

Although the Magistrate was legally entitled to disagree with the police report, the cognizance order merely stated that a prima facie case was made out on perusal of the case diary and failed to address the exculpatory material collected during investigation.

The High Court consequently held that the Magistrate had differed from the final form mechanically and without proper application of judicial mind.

The cognizance order in Araria P.S. Case No. 349 of 2013 was quashed, and the criminal miscellaneous application was allowed.