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IN THE HIGH COURT OF BOMBAY
Shah and Vyas D.V, JJ.
Appellants: State
Vs.
Respondent: Maganlal Chunilal Bogawat
Criminal Appeal No. 1167 of 1955
Decided On: 06.12.1955
Counsels:
For Appellant/Petitioner/Plaintiff: Govt. Pleader
For Respondents/Defendant: R.W. Adik, Adv.
ELECTRICITY ACT - SECTION 20(1)(A), 39, 44(D) - INDIAN PENAL CODE - SECTION 379 - UNAUTHORIZED ENTRY - IRREGULAR INVESTIGATION - JURISDICTION OF MAGISTRATE - PROSECUTION - ELECTRICITY ACT - SECTION 50 - ELECTRICITY THEFT - OFFENCE UNDER INDIAN PENAL CODE - APPLICABILITY OF SECTION 50.
Fact of the Case:
The accused, Bogawat, was charged with abstracting energy for lighting purposes through the motive power meter in his shop, thereby committing an offence under Section 44(d) of the Indian Electricity Act and Section 379 of the Indian Penal Code read with Section 39 of the Indian Electricity Act. The trial court acquitted the accused on the ground that the entry of the company's employees, Pardeshi and Bhingardiwe, into the accused's shop was unauthorized and illegal, rendering the entire prosecution case invalid.
Finding of the Court:
The High Court held that the trial court erred in acquitting the accused solely on the ground of irregularity in the investigation. The court found that the evidence of Pardeshi and Bhingardiwe, who had witnessed the unlawful abstraction of energy by the accused, was credible and sufficient to establish the offence. The court also held that the prosecution was properly instituted at the instance of the company, as required by Section 50 of the Indian Electricity Act, and that the offence of electricity theft under Section 379 IPC read with Section 39 of the Indian Electricity Act was not an offence under the Electricity Act, thus not requiring a complaint under Section 50.
Issues: 1. Whether the unauthorized entry of the company's employees into the accused's shop rendered the prosecution case invalid? 2. Whether the prosecution was properly instituted in accordance with Section 50 of the Indian Electricity Act? 3. Whether the offence of electricity theft under Section 379 IPC read with Section 39 of the Indian Electricity Act was an offence under the Electricity Act, requiring a complaint under Section 50?
Ratio Decidendi: 1. The jurisdiction of the magistrate depends upon the prosecution being instituted at the instance of the Government, an Electric Inspector, or a person aggrieved. Once the prosecution is so instituted, the magistrate is entitled to try the case, however irregularly the investigation might have been carried on. 2. Section 50 of the Indian Electricity Act provides that prosecution for offences against the Act, rules, license, or orders thereunder can be instituted only at the instance of the Government, an Electric Inspector, or a person aggrieved by the same. In this case, the prosecution was instituted at the instance of the company, which was a person aggrieved by the accused's actions. 3. The offence of electricity theft under Section 379 IPC read with Section 39 of the Indian Electricity Act is not an offence under the Electricity Act or any rule, license, or order thereunder. Therefore, Section 50 of the Indian Electricity Act does not apply to prosecution for this offence.
Final Decision: The High Court set aside the order of acquittal passed by the trial court and convicted the accused of offences under Section 44(d) of the Indian Electricity Act and Section 379 of the Indian Penal Code, sentencing him to pay a fine of Rs. 500 or, in default, to suffer rigorous imprisonment for six months.
1. Manganlal Chunilal Bogawat is carrying on business In Ahmednagar as a tailor. The town of Ahmednagar is served by the Ahmednagar Electric Supply Co. Ltd., by supplying electric energy for lighting purposes and for motive power for mechanical and other uses: The Ahmednagar Electric Supply Co. Ltd., has its head office to Bombay and has a local Manager stationed in Ahmednagar.
The Company supplies electric energy to consumers for lighting purposes as well as for motive power for other uses. The accused Bogawat had obtained two separate connections in his shop with the service of the Company. One was a connection for lighting purposes and the other was for use as motive power and heating.
On 8-1-1953, two employees of the Company, Pardeshi and Bhingardive went to the shop of Bogawat at about 7-15 p.m. and checked the two meters which were fixed one above the other, one for the lighting circuit and the other for the motive power circuit. They noticed, that all the lights in the shop were on. The meter for lighting service was not in motion and the main switch for lighting service was on the off position. They also noticed that the meter for the motive, power service was in motion and the main switch for that service was on and that the electric iron was not being used. It became apparent to the employees of the Company that the motive power circuit was being used for lighting purposes by means of some temporary connection. Panchas were accordingly seat for and a panchnama was made.
Thereafter intimation was sent to the head office, at Bombay and having obtained the sanction of the head office a complaint was lodged before the police that Bogawat had committed an offence under Section 44(d), Indian Electricity Act and under Section 379, Indian Penal Code read with Section 39, Indian Electricity Act. The police investigated the complaint and submitted a charge-sheet against Bogawat in the Court of the Judicial Magistrate, First Class, II Court, Ahmednagar.
2. Before the learned Judicial Magistrate on behalf of the prosecution the Local Manager Mr. Gore, two checkers Pardeshi and Bhingardive who visited the shop of Bogawat on 8-1-1953, Naik and Kachardas the two panchas and two other witnesses were examined besides the investigating officers Mehendale and Honap.
Alter discussion of some evidence the Judgment proceeds:-- The learned Magistrate accepted the evidence of Pardeshi and Bhingardiwe and of the Panch Naik who officiated at the time of the panchanama and held that the accused Bogawat had abstracted energy for lighting purposes through me motive power meter and he had used it improperly. The learned Magistrate, however, acquitted the accused because in his view Pardeshi and Bhingardiwe were not authorised to enter the shop of the accused Bogawat and inasmuch as their entry into the shop was illegal and unauthorised, the whole structure of the prosecution case must fall.
The learned Magistrate was of the view that Pardeshi and Bhingardiwe had not been given authority in writing by Gore, the Local Manager, to enter the shop of Bogawat, and that the authority which was produced in Court as given by Mistry, Superintendent of the Company, who had no power to give the authority under Section 20(1), Indian Electricity Act and that before entering the premises, Pardeshi and Bhingardiwe had not Informed the accused Bogawat of their intention to enter the premises and, therefore, there was a material defect in the procedure followed for checking up of the lighting system, and the entire proceeding of the two checkers must be regarded as illegal. The learned Magistrate observed:
"The result is that the lodging of the complaint becomes illegal and consequently the Prosecution cannot stand. Due to this technical defect the accused has got to be given an acquittal, though morally he does not seem to deserve the same."
Against the order of acquittal, the State of Bombay has preferred an appeal to this Court.
3. Mr. Adik, who appears on beh
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