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The Theft of Electricity has been proved to be a major

reason of Load Shedding in Pakistan. Sections 39 to 47 of

Electricity Act, 1910 deal with the different offences relating to

electricity, and penalties thereof.

To coup with this day by day increasing menace of

theft of electricity, under CRIMINAL LAW (AMENDMENT)

ORDINANCE, 2013 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 Section 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 Section 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

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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 Section 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 how 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 mean the Court of District and Sessions Judge or

the Additional Sessions Judge. Hence Magistrate Section 30

cannot take cognizance of this case.

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.
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(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

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 section 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.

10. 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

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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.

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(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.

. It is also important to mention here that 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

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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

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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

[Karachi] wherein the Hon’ble Sindh High Court, has been

pleased to hold that:-

“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

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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 [Lahore] the Hon’ble High Court

has been pleased to hold that:

“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 M L D 2090 [Lahore] titled as MUHAMMAD

ABDULLAH---Petitioner versus THE STATE---
Respondent,
 P L D 2005 Lahore 386 titled MUHAMMAD
SULEMAN and others---Petitioners Versus ABDUR
RAZZAQUE and others---Respondents,
 P L D 1996 Peshawar 37 titled as MUHAMMAD
SHOHAIB---Petitioner versus GHULAM SAMDANI
and others---Respondents and
 1996 P Cr. L J 483 [Peshawar] Syed ABDUL
REHMAN SHAH and 25 others----Petitioners Versus
STATION HOUSE OFFICER, POLICE STATION CITY,
MANSEHRA and another---Respondents.
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. 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 to make applications U/S 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, 1019.

Shahid Nadeem Butt,

Magistrate Section:30,
Mandi Bahauddin.