1991 Supreme(MP) 741

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Chawla, J.
State of M.P. – Appellant
Vs.
Kumer Singh – Respondent
Cr. Revn. No. 27 of 1986 (J)
Decided On : 28-06-1991

Headnote:(1) Electricity Act, 1910 – – S. 50 – – offence of abstracting' electrical energy – – prosecution not lodged either by Government, Electrical inspector or person aggrieved – – order of discharge is proper.

       (2) Electricity Act, 1910 – – S. 39 and 50 – – Indian Penal Code, 1860 – – S. 379 – offence of theft of electrical energy – – prosecution should be lodged by authority enumerated under S. 50 of the Act.

        Short Note

       1. The matter is heard in the absence of the non – applicant.

       2. Shri Pathak is heard. The record is perused.

       3. The non – applicant was alleged to have been caught by Head Constable Ram Naresh Sharma dishonestly abstracting electrical energy, which is an offence under Section 379 of the Indian Penal Code read with Section 39 of the Indian Electricity Act, 1910. A report of the alleged crime was made by the said Head Constable. The prosecution was instituted on a challan filed by Police Station Javar. Section 50 of the Electricity Act was attracted which lays that no prosecution shall be instituted against any person for any offence against this Act (Electricity 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. The learned Magistrate held that there was non – compliance of Section 50 ibid, inasmuch as, the prosecution had been instituted neither by or at the instance of the Govt. or Electrical Inspector or a person aggrieved. On that ground the learned Magistrate discharged the non – applicant.

       4. The matter is squarely covered by the decision of this Court in Suleman v. State of M.P. (1980 J .L.J. 117). Shri Pathak, learned counsel for the State, tried "to distinguish that decision by submitting that in that case, report was made by a supervisor of the Electricity Board; whereas in the present case report (F.I.R.) was made by Head Constable of the police. In my view, this can hardly be a ground of distinction. It is immaterial as to who had made the report. What is common both in the case cited and in the present case was that the prosecution was launched or instituted by the police. No order or direction from the State or from Electrical Inspector or from a person aggrieved by the offence was obtained in both the cases. Shri Pathak argued that "police" should be held to be "Government" and inasmuch as, this case was instituted by the police, it should be deemed that it was instituted by the Government. The decision in Suleman's case (supra) shows that such a contention cannot be accepted. "Police" cannot be said to be "Government" itself. If that had been the case, the prosecution would not have been held to be bad in Suleman's case (supra). The non – applicant was properly discharged.

       5. There is no force in this revision. It is dismissed. 1980 JLJ 117 relied on.