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1979 Supreme(MP) 92
HIGH COURT OF MADHYA PRADESH
G.L. Oza, J.
Suleman
v.
State of M. P.
Cr. Revn. No. 538 of 1977 against order passed by Shri Shri S.C. Agrawal, Additional Sessions Judge, Shajapur confirming the order passed by Shri R.G. Ghalia, Judicial Magistrate, I Class. Agar
Decided on : 18-7-1979.
Jaising for applicant;
B. L. Agrawal for State.
Headnote:Electricity Act, 1910-Ss. 39 & 50-Penal Code, 1860-Ss. 378 & 379-operation of section 378 of the Penal Code extended by section 39 of the Electricity Act-the offence of theft not created by section 378-extent of the legal fiction-prosecution can be launched by the police-but it should be on the report of a person mentioned in section 50 of the Electricity Act.
Section 39 did not extend S. 378 in the sense of amending it or in any way altering the language used in it. Section 378, read by itself even after the enactment of section 39 would not include a theft of electricity for electricity is not considered to be movable property. The only way in which it can be said that section 39 extended section 378 is by stating that it made something which was not a theft under section 378, a theft within the meaning' of that section. It follows that if section 39 did so it created the offence itself and section 378 did not do so. In this view of the matter we do not think it possible to say that the thing so made a theft and an offence, became one by virtue of section 378.
Dishonest abstraction of electricity mentioned in section 29 cannot be an offence under the Code for under it alone it is not an offence, the dishonest abstraction is by section 39 made a theft within the meaning of the Code that is, an offence of the variety described in the Code as theft. 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. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all. [Para 7]
Section 50 contemplates a prosecution either at the instance of the Government or at the instance of the Electrical Inspector. Even if a prosecution is launched by police as apparently it could be launched by police, as this is a cognizable Offence, it could only be initiated by report of the Electrical Inspector or under orders of the Government.
Where the police launched the prosecution on the report of a supervisor, the trial is vitiated. AIR 1965 SC 666, AIR 1944 Nag 380 and AIR 1968 Patna 131 relied on.
[Para 9]
Oza, J -1. This revision petition has been filed by the petitioner against his convictions under section 332 IPC and section 379 IPC read with section 39 of the Indian Electricity Act. He has been sentenced to three months' imprisonment and a fine of Rs. 500/- under section 332 and to a fine of Rs. 250/- under section 379 read with section 39 of the Indian Electricity Act by the learned Sessions Judge, Shajapur in appeal against the convictions of this petitioner by Magistrate 1st Class, Agar.
2. The prosecution case at the trial was that on 23rd May 1975 supervisor of the Electricity Board Shri S. P. Sharma with his assistant Ramcharan went to village Piplon Khurd on the well of the petitioner Suleman. There were other persons also accompanying them. There they found that the petitioner has connected a pump on the well without authority and the motor was being run by electrical energy which was being stolen. The supervisor directed his assistant Ramcharan to disconnect. Thereupon when Ramcharan got down from the pole the petitioner gave a blow with Dhariya to Ramcharan resulting in an incised wound on his palm. On these facts the petitioner was prosecuted and ultimately he was convicted and sentenced as stated above.
3. Learned counsel appearing for the petitioner in this revision contended that the offence under section 379 IPC is not made out because the electricity is not a movable property; According to the learned counsel the theft of electrical energy has been brought within the ambit of section 379 IPC by enactment of section 39 or the Indian Electricity Act and, therefore, the prosecution for this offence could only be launched by or at the instance of a person as comtemplated in section 50 of the Indian Electricity Act, He, therefore, contended that so far as the conviction of the petitioner under section 379 IPC is concerned it could not be maintained as the prosecution has not been launched by a person as required under section 50 of the Electricity Act.
4. Regarding the conviction of the petitioner under section 332 IPC it was contended that although the doctor described the injury as incised wound but he has not been able to measure the depth. According to the learned counsel the witnesses do say that when Ramcharan got down from the pole his palm was bleeding. Under these circumstances according to the learned counsel the offence under section 332 IPC is not made out beyond doubt.
5. Learned counsel for the State contended that the offence under section 379 IPC being a cognizable offence a charge-sheet has been filed by the police and therefore as it is an offence under section 379 the prosecution need not be by a person or at the instance of a person as required under section 50 of the Indian Electricity Act.
6. As regards the offence under section 332 IPC it was contended that the facts of the case justify the conviction.
7. Section 39 of the Indian Electricity Act reads:
"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 needs for such abstraction shall be prima facie evidence of such dishonest abstraction."
This section provides that if anyone consumes electrical energy dishonestly, he will be deemed to have committed an offence of theft within the meaning of Indian Penal Code. Theft has been defined in section 378 IPC and it provides for removal of movable property out of the possession of any person without that person's consent and with dishonest intention. Apparently, therefore, the definition of theft as contemplated under section 378 IPC will not cover a case of theft or use of electrical energy without the authority but section 39 of the Indian Electricity Act has brought this use of electricity in this manner within the ambit of the definition of theft. This question was considered by their Lordships of the Supreme Court in Avtar Singh v. State of Punjab, (AIR 1965 SC 666) and it
