( 1 ) THE accused in C. C. No. 28 of 1977 on the file of the Chief Metropolitan magistrate,hydef abad, were charge-sheeted by the Circle Inspector of Police, malkajigiri under section 379, Indian penal Code, read with section 39 of the indian Electricity Act read. with section 34 of the Indian Penal Code. A-2 to a-4 were also charged under section 44 (c) of the Indian Electricity Act, read with section 34, Indian Penal Code. The case against them is that they were found committing theft of electrical energy by adopting artificial means and tampering with the seals ; thereby caused loss to the andhra Pradesh State Electricity Board which was estimated at Rs. 61,28,636. When the case was taken up for trial a preliminary objection was raised that the alleged offence is not an offence within the meaning of section 379, Indian Penal code, and therefore the question of treating it as an offence under section 39 of the Indian Electricity Act read with section 379, Indian Penal Code, does not arise. Secondly, it was contended that the prosecution launched on the report of the two Assistant Engineers, Vigilance Ceil, Andhra Pradesh State Electricity Board, was not valid under section 50 of the Indian Electricity Act. The learned chief Metropolitan Magistrate negatived both the contentions and dismissed the objection. Thereupon the petitioner has filed this revision.

( 2 ) TWO questions are raised by the learned Counsel for the petitioner. First, the accused has not committed an offence under section 379, Indian Penal Code. Even otherwise, section 39 of the Indian electricity Act does not provide for punishment. Therefore, the prosecution is bad. Secondly, the prosecution filed by the assistant Engineers is not valid under section 50 of the Indian Electricity Act.

( 3 ) IN order to appreciate these questions, it is necessary to refer first to section 39 of the Indian Electricity Act, 1910. That section reads as follows: "section 39: Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian penal Code ; and the existence of artificial means for such abstraction shall be prima jade evidence of such dishonest abstraction. " theft of electrical energy is not an offence under the Indian Penal Code. It is made an offence by section 39 of the indian Electricity Act. By virtue of that section whoever dishonestly abstracts, consumes or uses any electrical energy is deemed to have committed theft within the meaning of the Indian Penal Code. Therefore, it is an offence against the Act. It is not correct to state that theft of electrical energy is an offence under the indian Penal Code. It is unnecessary to refer to all the decisions on this question. In Avtar Singh v. State oj Punjab1, after referring to the conflict of decisions in that regard, the Supreme Court held that it is not an offence under the Indian Penal code but it is made an offence by section 39 of the Indian Electricity Act.

( 4 ) IT is true that the punishment as such is not prescribed unden section 39 of the act, but it is unnecessary because it is deemed to be an offence of theft within the meaning of the Indian Penal Code. The Supreme Court observed in Avtar singh s case, "as the offence is created by raising a fiction the section which raises the fiction namely section 39 of the act, must be said to create the offence. Since the abstraction is by section 39 to be deemed. to be an offence under the code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the code for that offence ". Consequently, i reject the first contention.

( 5 ) IN order to decide the second question it is necessary to refer to section 50 of the Indian Electricity Act. Since the offence committed by the accused is under section 39 of the Electricity Act evidently the provisions of section 50 of the Act are attracted. Section 50 of the Electricity Act reads as follows:"no prose

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