Theft of electricity is an offence against the Indian Electricity Act, 1910 and prosecution for such offence is incompetent unless it is instituted at the instance of the Government, an Electrical Inspector, or a person aggrieved by the offence.

Judgment

SARKAR, J. :

The appellant was prosecuted for theft of electrical energy from the Punjab State Electricity Board and was convicted. In this appeal the appellant had not sought to challenge the finding that he had committed the theft. He has only raised a point of law that his conviction was illegal in view of certain statutory provisions to which, therefore, we immediately turn.

2. The statute concerned is the Indian Electricity Act, 1910. Section 39 of the Act, so far as material, provides, "Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code". It is not in dispute that the appellant had committed the theft mentioned in this section. Section 50 of the Act provides, "No prosecution shall be instituted against any person for any offence against the Act...... except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same. " The appellant s contention is that his prosecution was or an offence against the Act and it was incompetent as it had not been established that it had been instituted at the instance of any of the persons mentioned in S. 50. The Courts below held that the prosecution was not for an offence against the Act and in that view of the matter held that S. 50 did not apply. On the question whether it had been instituted by a person mentioned in S. 50, the prosecution gave no materials for a decision.

3. The question whether theft of electricity is an offence against the Act or not has come up before the High Courts on several occasions and thy decisions disclose a diversity of opinion. It will be convenient to refer to these opinions at this stage. In State v. Maganlal Chunilal, AIR 1956 Bom 354 Tulsi Prasad v. The State, (1964) 1 Cri LJ 472 (Pat) and Public Prosecutor v. Abdul Wahab, 1964-77 Mad LW 271 it was held that the theft was not an offence against the Act while the contrary view was taken in Vishwanath v. Emperor, ILR (1937) All 102 Dhoolchand v. State, ILR (1956) 6 Raj 856 and In re. P. N. Venkatarama Naicker, AIR 1962 Mad 497.

4. In our opinion, the view expressed by the Allahabad High Court in ILR (1937) All 102 is the correct one. The matter was put in these words : "The learned Sessions Judge was of opinion that the offence was not an offence against the Act because it was one punishable under the provisions of S. 379 of the Indian Penal Code. We think that this should not have been an offence under S. 379 of the Indian Penal Code if it had not been for the provisions of S. 39 of the Indian Electricity Act. It was, therefore, an offence which was created by that section and we are of opinion that the legislature intended S. 50 to apply to an offence of this nature. " We are in complete agreement with this statement of the law.

5. We may now set out the reasons on which the contrary view was taken and state why we are unable to accept them. In AIR 1956 Bom 354 it was stated that S. 39 of the Electricity Act only extended the operation of S. 379 (S. 378?) of the Penal Code and Vishwanath s case, ILR (1937) All 102 was wrongly decided as S.39 expressly made the dishonest abstration of electrical energy an offence punishable under the Code. In (1964) 1 Cri LJ 472 (Pat) an additional reason in support of the same view was given and that was that S. 39 could not create an offence as it did not provide for any punishment. The case of 1964-77. Mad Law 271 seems to have proceeded on the basis that S. 39 created a fiction by which something which was not a theft within the Indian Penal Code became one under it and so the offence was really under the Code. It was also stated that the purpose of the fiction was merely to create an offence but as the punishment for it was provided only under the Indian Penal Code, the offence really became one under the latter statute.

6. With regard to the first reason that S. 39 of the Act extended the operation of S. 378 of the Code, it seems to