LexAVTAR SINGH versus STATE OF PUNJAB
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AVTAR SINGH
v.
STATE OF PUNJAB
August 24, 1964
(A. K. SARKAR, K. N. WANCHOO AND RAGHUBAR DAYAL JJ.)
Indian Electricity Act (9 of 1910), ss. 39 and 50-0fJence under
s. 39-1/ against the Act-Who can institute prosecution.
The appellant was prosecuted and convicted for theft of electrical energy
under s. 39 of the Indian Electricity Act (9 of 1910).
He contended
that, as his prosecution \vas for an offence against the Act it was incom~
petent, .because, it had not been instituted at the instance of any of lhe
persons mentioned in s. 50 of the Act.
HELD : The conviction of the appellant must be set aside.
The dishonest abstraction of electricity mentioned in s. 39 of the Act
cannot be an offence under the Indian Penal Code for under it alone it is
not an offence; the dishonest abstraction is by that section made a thcit
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 s. 39 must be said to create the
offence.
Since the abstraction is 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.
Further, the object of s. 50 of the Act is to prevent
prosecution for offences against the Act being instituted by any one who
chooses to do so because, the offences can only be proved by men possessing
special qualifications, and there is no reason why it should not have been
intended to apply to dishonest abstraction of energy made an offence of
theft by s. 39.
[l07A-C, E-G].
Emperor v. Vishwanath, I.LR. [1937] All. 102, Dhoolchand v. Stat•
[1956] I.LR. 6 Raj. 856 and In re. P. N. Venkatarama Naicker, A.I.R.
1962 Mad. 497, approved.
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State v. Magan/al Chuni/al Bogawat, A.I.R. 1956 Born. 354, Tu/si
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Prasad v. The State, (1964) l Cr. L.J. 472 and Public Prosecutor v. Abdul
Wahab, (1964) LW. 271 (F.B.), overruled.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
42 of 1963.
Appeal by special leave from the judgment and order dated
November 13, 1962 of the Punjab High Court in Criminal Revision
No. 648 of 1962.
0. P. Rana, for the appellant.
Gopal Singh and R. N. Sachthey, for the respondent.
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The Judgment of the Court was delivered by
Sarkar J,
The appellant was prosecuted for
theft of
electrica.l energy from the Punjab State Electricity Board and
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SUPREME COURT REPORTS
[I %5] I S.C.R.
1as convicted.
In this appeal the appellant has not sought to
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challenge the finding that he had committed the theft.
He has
only raised a point of law that his conviction was illegal in View
of certain statutory provisions to Which, therefore, we immediately
turn.
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The statute concerned is the Indian Electricity Act, 1910.
Section 39 of the Act, so far as material, provides, "Whoever
dishonestly abstracts, oonsumes or uses any energy shall
be
deemed to have committed theft within the meaning of the Indian
Pen.al Code".
It is not in dispute that the appellant had com-
mitted the theft mentioned in this section.
Section 50 of the
Act provides, "No prosecution shall be instituted against
any
person for any offence against the Act . . . . except at the instance
of the Goverriment or an Electrical Inspector, or of a person
aggrieved by the same." The appellant's contention is that his
prosecution was for an offence against the Act and it was incom-
petent as it had not been established that it had been instituted
at the instance of any of the persons mentioned in s. 50.
The
Courts below held that the prosecution was not for an offence
against the Act and in that view . of the matter held
that s. 50 did not apply.
On the question whether it had been
instituted by a per>an mentioned in s. 50, the prosecution gave
no materials for a decision.
The statute concerned. is the Indian Electricty Act, 1910.
t~e Act or not has come up before the High Courts <;m several
occasions and the decisions disclose a diversity of opinion.
It
will be convenient _to refer to these opinions at this stage.
In
Stale v. Magan/al Chunilal Bogwat('), Tutsi Prasad
v.
The
State(') and Public Prosecutor v. Abdul Wahab('). it was held
that the theft was not an offence against the Act while the con-
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