Dishonest abstraction of electricity is an offence of theft under IPC.

This is an appeal by the Public Prosecutor against the acquittal of the six respondents by the Sub-Magistrate of Papanasam of offences under section 370, Indian Penal Code, read with section 39 of the Indian Electricity Act and section 44(c) and (d) of the Indian Electricity Act. The case for the prosecution is that the first accused celebrated the marriage of his daughter and for that purpose obtained a temporary connection from the Kumbakonam Electric Supply Corporation. Suspecting that there was some tampering of the electricity for providing energy for the marriage pandal, P.W. 1 inspected the place and found wires had been inserted and cut out leads were provided from the meters of the houses belonging to accused 2 to accused 5. P.W. 1 deposed that the consumption of the electricity taken to the marriage pandal was not recorded. He also found the link opened in one of the meters and the meter not functioning. On the evidence, the lower Court came to the conclusion that the prosecution has not succeeded in proving that the accused were guilty of the offence under the Indian Electricity Act.

Before the trial Court, a preliminary point was taken on behalf of the accused. It was submitted before the lower Court that under section 50 of the Indian Electricity Act 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. The learned Magistrate overruled the objection of the defence and held that the prosecution was properly instituted.

Learned Counsel appearing for the accused raised the same contention in this appeal against acquittal that the prosecution has not been instituted by the government or by an Electrical Inspector or by an aggrieved person. It is admitted by the Public Prosecutor that the company is a licensee and, therefore the prosecution was not at the instance of the Government or by an Electrical Inspector. He submitted that in any event the Chief Engineer Electricity of the Kumbakonam Corporation will be a person aggrieved under the Act. The Public Prosecutor also submitted that so far as the offence of theft of electricity is concerned, it is not an offence under the Electricity Act but an offence only under section 379, Indian Penal Code and that the restriction imposed by section 50 of the Electricity Act is not applicable.

Section 39 of the Indian Electricity Act provides that 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 facie evidence of such dishonest abstraction, As electricity is not moveable property under section 22 of the Indian Penal Code, theft of electricity will not by itself be an offence under section 378 of the Indian Penal Code. Section 39 of the Indian Electricity Act provides that dishonest abstraction or consumption or use of electrical energy shall be deemed to be theft within the meaning of the Indian Penal Code. The question for consideration is whether dishonest abstraction, consumption or use of electrical energy is an offence punishable under the Indian Electricity Act or under the Indian Penal Code. No doubt, it will not be an offence under section 379 of the Indian Penal Code but for the explanation contained in section 39 of the Indian Electricity Act. If dishonest abstraction, consumption or use of electrical energy is an offence against the Electricity Act, the condition imposed under section 50 of the Electricity Act is applicable. But if it is an offence under section 379 of the Indian Penal Code, the condition required under section 50 of the Indian Electricity Act need not be fulfilled.

A Bench of the Allahabad High Court in Vishwanath v. Emperor1, held that dishonest abstraction of electrical energy would not have been