1991 Supreme(MP) 761

IN THE HIGH COURT OF MADHYA PRADESH
Shacheendra Dwivedi, J.
Surendra Singh - Applicant
Versus
State of M.P. - Non-Applicant
Cr.R. No. 93 of 1985 (G)
Decided On : 18-04-1991

Headnote:(1) Indian Penal Code, 1860 – – S. 379 – – Electricity Act, 1910 – – S. 39 and 50 – – theft of electric energy – – prosecution not launched by competent person – – accused cannot be punished.

       (2) Electricity Act, 1910 – – S. 50 and 39 – – prosecution for theft of electric energy not launched by competent person as provided under S. 50 – – accused cannot be punished.

        Short Note

       1. Briefly stated the prosecution story is that L.K. Mittal, (PW – 1), Sub – Engineer, Alapur, on getting information regarding theft of electrical energy on 12.5.81, accompanied by his staff and two constables of P.S. Joura, reached near the flour – mill of Bhagwanlal and found that the petitioner was abstracting electrical energy directly from the main – line and was operating thrasher. He seized the thrasher and prepared a panchnama (Ex.P.1) of the incident and seizure memo of the articles like motor, starter, bulb and wires used for the purpose of taking energy vide Ex.P.2. He further reported the matter to police Joura.

       2. The petitioner was accordingly tried for the offences under section 379 IPC read with section 39 of the Indian Electricity Act. On trial, the learned Magistrate found the petitioner guilty of the offences and sentenced him to undergo rigourous imprisonment for six months and fine Rs. 2,000/ – . On appeal being preferred, the learned appellate Court confirmed the conviction of the petitioner, but while reducing the punishment of imprisonment from six months R.I. to three months R.I. maintained the fine of Rs. 2,000/ – imposed by the trial Court.

       Held: I have heard the learned counsel for the parties and perused the record of the lower Courts. Shri Rajeev Gupta, learned counsel for the petitioner, inter alia contended that L.K. Mittal, (PW – 1), was working as a Sub – Engineer of the M.P.E.B., and he had no authority and powers to seize the articles and to report the matter to the police. He further submitted that the report being by the unauthorised 'person' the conviction cannot be allowed to stand. In support of his submissions, he relied on Avtarsingh v. State of Punjab (AIR 1965 SC 666), State of M.P. v. Hiralal (1976 MPWN 249), Suleman v. State (1980 JLJ 117), Jhalkansiligh v. State of M.P. (1981 JLJ 560), Laxman v. State (1985 MPLJ 125) and Sardarsingh v. State [1986 (11) MPWN 183].

       3. It has not been disputed that L.K. Mittal (PW – 1) along with the members of his staff and police constables visited the spot near Bhagwanlal's flour mill and found that the electrical energy was being dishonestly abstracted by the petitioner, but the question remains whether the prosecution under section 379 IPC read with section 39 of the Indian Electricity Act would proceed on the report of L.K. Mittal (PW – 1), who was merely a Sub – Engineer. On going through various authorities and section 50 of the Indian Electricity Act, it is clear that the prosecution for the theft of electrical energy could only be launched as required under section 50 of the Indian Electricity Act by a person aggrieved, or only at the instance of Government or an electrical inspector. Admittedly, L.K. Mittal (PW – 1) was not the 'person' or authority enumerated under section 50 of the Act. In Suleman's case (supra), it has been laid down that although the prosecution could be launched by the police, it had to be initiated on the report of the person mentioned in section 50 of the Act. Under the circumstances, the prosecution itself being without authority, conviction and sentence passed against the petitioner deserve to be quashed. AIR 1965 SC 666, 1976 MPWN 249, 1980 JLJ 117, 1981 JLJ 560 and 1986 (11) MPWN 183 relied on. Revision allowed.