The prosecution of an offence against the Indian Electricity Act must be instituted at the instance of the Government, an Electrical Inspector, or an aggrieved person, and the onus of proving that the prosecution was instituted at the instance of one of these persons lies on the prosecution.

Kamla Sahai, J.

1. The petitioner has been convicted under Sec.379 of the Penal Code read with Sec.39 of the Indian Electricity Act, and has been sentenced to undergo rigorous imprisonment for six months as well as to pay a fine of Rs. 500 or, in default, to suffer simple imprisonment for two months.

2. It appears that sixteen persons were put upon their trial on the allegation that, by making an unathorised connection, they were dishonestly consuming and using electrical energy generated by the Sindri Fertilisers and Chemicals Limited in their Electrical Department as licensees for supply of electrical energy to the premises of the company and also to Sindri town. All of them were convicted and sentenced by the trying Magistrate. They filed two appeals. They were heard by the learned Sessions fudge of Dhanbad. He maintained the conviction and sentence passed upon the petitioner but allowed the appeals of, and acquitted all the rest of the accused persons.

3. The prosecution case is that, during the relevant time, the petitioner was the President of the Sindri Workers Union. The union was recognised by the management, and quarters Nos. J/11 and J/12 of the company were allotted to it. The petitioner as President and Anirudh Misra as Secretary of the Union occupied, and were in possession of, the two quarters. The management, however, withdrew the recognition from the Union towards the end of 1952, and asked the petitioner and Anirudh to vacate the quarters. They did not vacate the quarters. Hence, the company instituted a civil suit for their eviction. In February, 1954, the company disconnected the electric connection which had been previously given to the two quarters. Shortly thereafter, however, the connection was restored in an unauthorised manner without the orders of any one in authority. Electrical energy then began to be consumed and used in the quarter. A report, dated the 4th August, 1959 was made by the Assistant Superintendent of Electrical Maintenance to the Superintendent of Maintenance. On the same day, the Superintendent forwarded the report to the Secretary, Shri Thatham (P. W. 13). Shri Thatham then sent the report, along with a letter (Exhibit 8) to the officer in-charge of the police station (P. W. 15) who drew up a formal first information report on its basis, and started investigation.

4. The defence case is that the petitioner and Anirudh were not in occupation or possession of the two quarters, J/11 and J/12; that they had nothing to do with theft or electrical energy; and that the prosecution had been launched in violation of Sec. 50 of the Indian Electricity Act.

5. An important point which Mr. Guptesh-war Prasad, who has appeared on behalf of the petitioner, has raised is that the defence that the prosecution has been launched in violation of Sec. 50 of the Indian Electricity Act is correct.

That section reads :-

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

There can be no doubt that the prosecution was instituted in this case for an offence against this Act because, under Sec.39 of the Act, dishonest abstraction, consumption or use of electrical energy is deemed to be theft within the meaning of the Indian Penal Code. The word deemed is significant. The offence is not theft within the meaning of the Penal Code but is deemed to be theft within the meaning of that Code, in view of this section. If there had been no Sec.39, theft of electrical energy could not be so deemed to be theft. The prosecution was, therefore, clearly in respect of an offence against this Act. I need not discuss this matter further because their Lordships of the Supreme Court have laid this down in Avtar Singh V/s. State of Punjab, AIR 1965 SC 666. They have also said that onus of proving that the prosecution has been instituted