PLJ 2022 Cr.C. 1152
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 462-H to 462-M--Theft of electricity--Ambiguity about taking cognizance of offences u/S. 462-H to 462-M of Pakistan Penal Code, 1860 relating to theft of electricity is soaring system which is required to be set at naught--A new Chapter XVII-B was inserted in Pakistan Penal Code, 1860 through "The Criminal Law (Amendment) Act, 2016" to deal with such offences and Schedule II of Code of Criminal Procedure, 1898 was also amended so as to make offences mentioned in above Chapter as cognizable and non-bailable, which means that for cognizable offence, registration of FIR is permissible. [P. 1156] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 462-O--Conditional cognizance--Conditional cognizance has produced a match between cognizance and cognizable offence or taking cognizance and registration of FIR-- However, a conditional cognizance under Section 462-O of PPC was introduced under this chapter in following words:
Cognizance.--(1) The Court shall try an offence punishable under this Chapter.
(2) Notwithstanding anything contained in Code of Criminal Procedure, 1898 or any other law for time being in force, 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 offence committed under this Chapter, by duly authorized officer (not below Grade 17) of Government or distribution company, as case may be.
[P. 1156] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154, 155, 190, 195 to 199--Cognizance and cognizable offence or taking cognizance and registration of FIR--Cognizance is a later stage in a criminal process when Court for first time takes notice of an offence on a police report or on a complaint by a private person--Before that criminal process if initiated u/S. 154, Cr.P.C. for cognizable offences and 155, Cr.P.C. for non-cognizable offences, it has to pass through stage of investigation, purpose whereof is collection of evidence which guides to prosecute or not to prosecute--In ordinary offences, Court u/S. 190, Cr.P.C. is authorized to take cognizance plainly on a police report or on a private complainant within in contours of such section without attending any peculiar condition; but in certain situations, cognizance is restricted based on public policy in order to govern cases with controlled prosecution--Section 195 to 199 of Cr.P.C. is response of what has been stated above--Similarly, present Chapter XVII-B also gives a tinge of controlled prosecution so as to eliminate interference by general public in initiation process. [Pp. 1156 & 1157] C
2013 PSC (Criminal) 24, PLD 2012 SC 892, 2006 SCMR 483.
Cognizance of Offence--
----Question of--Section 462-O, Pakistan Penal Code & S. 195, Criminal Procedure Code--So far as question of taking cognizance of offence by Court is concerned, above section (462-O, PPC) is when juxtaposed with Section 195 of Cr.P.C., it transpires that under Section 195 of Cr.P.C., Court shall straight away take cognizance of offences on complaint in writing of Public Servant/Court and no other restriction has been imposed like recording of reasons before taking cognizance. [P. 1157] D
Gas (Theft Control and Recovery) Act, 2016--
----Ss. 5(2) & 24--Honourable Supreme Court has declared that--When offences are cognizable, registration of FIR is not barred.
[P. 1157] E
2021 SCMR 56
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 461-I & 462-O--Pre-arrest bail, grant of--Allegation of--Committing theft of electricity by using bogus meter--Under Section 462-O taking cognizance on a complaint made by duty authorized officer--No detection bill has been issued against petitioner--Police official, present in Court states that he has not taken into custody relevant record whereby such reference of meter could be tracked in record or otherwise--On other hand, learned counsel for petitioner has placed on record copy of application (the date of occurrence), stating therein that his meter was disconnected and he requested for its restoration--It transpires that when FESCO Department raided, no meter was installed at premises but later this F.I.R. was registered--Offence charged with does not fall within prohibitory clause--There is a shake in prosecution story, therefore, a question of further inquiry arises and involvement of petitioner in this case with malafide intention of complainant also cannot be ruled out--Scope of pre-arrest bail has been widened and as such while granting pre-arrest bail even merits of case can be touched upon", this petition is allowed and interim pre-arrest bail already granted to petitioner is confirmed. [Pp. 1158 & 1159] I & J
Words and Phrases--
----"Reasons to be recorded"-- The words "reasons to be recorded" are very valuable and A meaningful because electricity theft is gauged through technical report which requires an expert opinion so as to facilitate Court to reach out direct to essence of offence and may not remain entangled about an exercise of applicability of offences for proper charging. [P. 1158] F
Criminal Procedure Code, 1898 (V of 1898)--
----S. 196--Cognizable offence barred-- On analogy of Section 196, Cr.P.C. where cognizance of certain offences is barred except on a complaint by Central or Provincial Governments or authorized officer, yet all offences referred in Section 196, Cr.P.C. are not non-cognizable; e.g. Section 123-B in Chap-VI, Section 171-J in Chap-IX-A, Section 153-A & Section 505 are cognizable; therefore, FIR is registered in such sections; however, for taking cognizance, Court requires complaint/sanction of Central or Provincial Government or authorized officer at time of framing charge or at time of addition or alteration of charge as mentioned in Section 230 of Cr.P.C., only if sanction/complaint has not already obtained or it has not been attached with report u/S. 173 of Cr.P.C--Another instance is of Section 7 of Explosive Substances Act, 1908 which also requires sanction for prosecution to be obtained yet FIR is registered under such law for cognizable offences and for prosecution, sanction is obtained later if case is found by government to be fit to prosecute.
[P. 1158] G
Registration of FIR--Not barred--
---- In light of above discussion, it is held that registration of F.I.R. for offences under Chapter XVII-B, PPC is not barred, because all offences have been shown as cognizable in Schedule II of Cr.P.C. However, later during process, requisite complaint is required to be filed with report under Section 173, Cr.P.C. before trial Court--Prosecutors are expected to scrutinize such complaint and report under Section, 173 Cr.P.C. before forwarding it to Court concerned so as to make it conformable with requirement of Section 462-O, PPC. [P. 1158] H
Mr. Laeeq Hafeez Khan Barak Zai, Advocate with Petitioner.
Mr. Nisar Ahmad Virk, Deputy Prosecutor General for State.
Date of hearing: 31.1.2022.
PLJ 2022 Cr.C. 1152
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
ZEESHAN ANJUM--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 1006-B of 2022, decided on 31.1.2022.
Order
Petitioner seeks pre-arrest bail in case FIR No. 1413/2021 dated 12.10.2021 registered under Section 462-I, PPC at Police Station Sargodha Road Faisalabad.
2. As per prosecution story, petitioner is under the charge of committing theft of electricity by using bogus meter.
3. Learned counsel for the petitioner states that in the light of Section 462-O, PPC, cognizance is to be taken on a complaint made by duly authorized officer (not below Grade 17) of the Government or the distribution company, therefore, registration of FIR is barred; he placed reliance on case reported as "PESCO thorough Executive Officer versus The State and 43 others " (2020 PCr.LJ 249 [Peshawar (D.I. Khan Bench)].
4. On the other hand, learned DPG while placing reliance on the case reported as "Mian Haroon Riaz Lucky and another versus The State and others" (2021 SCMR 56) states that when the offence stands cognizable F.I.R. has rightly been registered.
5. I have heard the learned counsel for the petitioner as well as learned Deputy Prosecutor General at length and perused the record.
Cognizance.--(1) The Court shall try an offence punishable under this Chapter.
7. Above conditional cognizance has produced a match between cognizance and cognizable offence or taking cognizance and registration of FIR. We know that both are different phenomena as held by Honourable Supreme Court in case reported as "Muhammad Nazir versus Fazal Karim, etc." (2013 PSC Criminal 24); therefore, FIR is not barred in these offences as being cognizable. Further reliance is on cases reported as "Muhammad Nazir versus Fazal Karim and others" (PLD 2012 Supreme Court 892) "Industrial Development Bank of Pakistan and others versus Mian Asim Fareed and others" (2006 SCMR 483).
An identical law known as Gas (Theft Control and Recovery) Act, 2016 also deals with question of taking cognizance differently and closer to provision of Section 195, Cr.P.C. as regulated u/S. 5(2) of said Act in following terms:
"Notwithstanding anything to the contrary in this Act, Gas Utility Court shall not take cognizance of any offence punishable under the Act except upon a complaint made in writing by a person authorized in this behalf by the Gas Utility Company in respect of which offence was committed.
In said law, Section 24 deals with the status of offences which says as under:
"Notwithstanding anything contained in the Code of Criminal Procedure (Act V of 1898). All offence under this Act if committed by any person other than a domestic consumer shall be cognizable and non-bailable.
Under the New Chapter XVII-B in, PPC, Court is required to do the following:--
i. Court shall take cognizance only on the complaint made by duly authorized officer (not below Grade 17) of the Government or the distribution company, as the case may be.
ii. Court shall take cognizance only if the complaint shows recording of reasons in writing alongwith full particulars of offences committed under this chapter.
Section 7 of the Explosive Substances Act, 1908 which also requires sanction for prosecution to be obtained yet FIR is registered under such law for the cognizable offences and for prosecution, sanction is obtained later if case is found by the government to be fit to prosecute.
Rs. 1,00,000/- (one lac) with one surety in the like amount to the satisfaction of learned trial Court.
(A.A.K.) Bail confirmed
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