1927 Present : Schneider and Lyall Grant JJ. and Drieberg A .J.

NAGAIYA v. JAYASEKERE.

38-V. C. Colombo, 26,383.

Electricity-Can it be movable of theft-Movable properly-Penal Code, ss. 20 and 367.

Electric current is not movable property within the meaning of section 20 of the Penal Code and cannot be the subject of the offence of theft.

CASE referred by Lyall Grant J. to a Bench of three Judges on the question whether under the law of Ceylon electricity can be the subject of theft.

H. V. Perera (with N. E. Weerasooriya), for accused, appellant.

Grenier, C.C., for the Attorney-General.

March 22, 1927. SCHNEIDER J.-

I agree with the judgment of my brother Drieberg. An opportunity to read it has been kindly afforded me by him. The only observation I would desire to add is that as the Penal Code has not defined " corporeal property " or " movable property," except to indicate what property of a corporeal nature is not to be regarded as included in the term " movable property," that we must resort to the general law, that is, our common law, to ascertain the meaning to be attached to the terms " movable property " and " corporeal property " for the purpose of deciding the question raised by this appeal. Our common law is based purely on the Roman law. My brother has referred to the Roman law. I will refer only to two eminent writers, Grotius 1 and van Leeuwen.2 They both agree in regarding corporeal things as those which " may be touched and seen " as distinguished from incorporeal things " which are not subject to the touch or sight but consist in rights and privileges." In other words, they are " things " by a fiction of the law. They also agree that corporeal things are either movable or immovable. These conceptions are consistent with the explanation attached to the term movable property in the Penal Code. Electricity, viewed from the point of any explanation or definition of what it is, does not come within the conception of a " corporeal thing " according to our common law. It cannot, therefore, be the subject of a theft.

1 Introduction to Dutch Jurisprudence, Bk. II., Chap. 1, ss. 10-14.

2 Commentaries, Bk. II., Chap. 1, ss. 4-6.

LYALL GRANT J.-

This is an appeal from a conviction by the Police Magistrate of Colombo, which came before me, and which in view of the practical importance of one of the questions raised I reserved for the consideration of a larger Court. ,

The offence charged was that the accused committed theft of electric current, an offence punishable under section 367 of the Ceylon Penal Code. The accused was found guilty and fined Rs. 75.

An appeal was taken against the conviction on the ground that the evidence did not conclusively point to the accused being the offender, and also on the ground that under the law of Ceylon electricity cannot be the subject of theft.

Both these arguments were advanced before the learned Police Magistrate, but both were rejected by him.

On the question of whether the accused had abstracted the current I saw no reason to v differ from the finding of the learned Police Magistrate after the first argument, and I am still of that opinion.

The only question which remained for consideration is whether under our law electricity can be the subject of an offence punishable under section 367 of the Penal Code; in other words, whether it can be the subject of theft.

In view of the tentative opinion which I formed on this point- an opinion which, if correct, would no doubt necessitate the introduction of remedial legislation-I thought it advisable to reserve the case for the purpose of ascertaining whether my opinion agreed with that of my brother Judges, and also in order that the Court should have the benefit "of-argument on behalf of the Crown.

Theft is defined in section 366 of the Penal Code as follows:-

" Whoever, intending to take dishonestly any movable property out of the possession