IMPORTANT POINT
For institution of prosecution under the Electricity Act, 1910, authorization to Officers by Electricity Board need not be by a notification published in the Official Gazettee.

JUDGMENT

Sen, J. - This appeal by special leave is directed against a judgment of the Karnataka High Court dated December 15, 1980 affirming the order of acquittal passed by the Munsif and Judicial Magistrate First Class, Krishnarajanagar dated July 10, 1979 acquitting to respondent of an offence punishable under sections 39 and 44 of the Indian Electricity Act 1910 read with section 379 of the Indian Penal Code, 1860.

2. The prosecution case in brief was as follows. On August 25, 1976 at about 12 noon P.W. 1 Syed Ameer, Supervisor, Karnataka Electricity Board, went to the house of the respondent on a routine inspection to check the electric meter installed there. He found the meter board at the entrance and though the meter was not recording consumption of electric energy, the lights and fans were on. It appeared that the respondent had tampered with the main connection by fixing two switches to the wall of the house and by operating the switches the lights and fans inside the house could be used without the meter recording any consumption. Later in the day, he along with the Assistant Engineer attached to the Karnataka Electricity Board, Krishnarajanagar and the Junior Engineer went to the house of the respondent and saw that there was theft of electric energy. Accordingly, on the direction of the Assistant Engineer, P. W. 1 Syed Ameer lodged a report with the police Ex. P-l. After an investigation into the complaint, the Krishnatajanagar police filed a challan. The prosecution led evidence of five witnesses including that of P.W. 1 Syed Ameer, Supervisor and P.W. 2 Bheemanna, Junior Engineer to substantiate the charge. The learned trying Magistrate however acquitted the respondent of the offence with which he was charged under section 248(1) of the Code of Criminal Procedure, 1973 on the ground that the prosecution had failed to establish that P.W. 1 Syed Ameer had been authorized to lodge a complaint. On the reading of section 50 of the Act, he held that a Junior Engineer of the Electricity Board could lodge a complaint but not the Supervisor, and the mere presence of the Junior Engineer after detection of the theft, does not imply that the Supervisor had been authorized to lodge a complaint. The High Court has upheld the order of acquittal passed by the learned trying Magistrate on the ground that the notification issued by the Karnataka Electricity Board authorizing Junior Engineers, Section Officers and Supervisors to institute prosecutions in terms of section 50 of the Act not having been published in the Official Gazette, the Court could not take judicial notice of any such notification and it was for the prosecution to lead evidence in proof thereof to establish that P.W. 1 Syed Ameer was competent to lodge a complaint. It rejected a prayer of the learned Public Prosecutor to lead additional evidence in proof of the notification on the ground that that would be tantamount to allowing the prosecution to fill up a lacuna in the case.

3. The decision of the appeal must turn on the construction of section 50 of the Act which reads as follows:

"50. Institution of Prosecution-No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order there under, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same".

According to the plain English language, the ordinary meaning of the phrase "at the instance of in the collocation of words. No prosecution shall be instituted except at the instance of must, in the context in which it appears, mean at the behest of or at the solicitation of. The word 'instance' as a verb means to urge, entreat urgently, importune. The meaning of the phrase "at the instance of" as given in Random House Dictionary of the English Language at p. 690 is at the urging or suggestion of'. 'Instance' does not imply the same degree of obligation to obey as does 'command.' That is also the legal sense in which