AVTAR SINGH versus STATE OF PUNJAB

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AVTAR SINGH v. STATE OF PUNJAB

August 24, 1964

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(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.

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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 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.

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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,

theft of The appellant was prosecuted electrica.l energy from the Punjab State Electricity Board and

for

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In this appeal the appellant has not sought to A

1as convicted. 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 It is not in dispute that the appellant had com Pen.al Code". the mitted the theft mentioned in this section. Section 50 of 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 the matter held against 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.

in that view . of

the Act and

The statute concerned. is the Indian Electricty Act, 1910. t~e Act or not has come up before the High Courts <;m several It occasions and the decisions disclose a diversity of opinion. 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 trary view was taken in Emperor v. Vishwanath('). Dhoolchand v. State(') and In re P. N. Venkatarama Naicker(').

In' our opinion, the view expressed by the Allahabad High Court in Emperor v. Vishwanath(') i~ the· correct one. The matter was there put in these words: "The learned Sessions Judge was of opinion that· the offence was not an offence against the Act because it was one punishable under the provisions of s. 379 of the Indian Penal Code. We think that this would not have been an offence under section 3 79 of the Indian Penal Code if it had not been for the provisions of section 39 of the Indian Elec It was, therefore, an offence which was created by tricity Act.

(I) A.l.R. 1956 Born. 354. (3) (1964) L.W. Madras 271. (F.B.) (5) (1956) 1.l..R. 6 Raj. 856.

(2) (1964) I Cr. l..J. 4n (4) I.LR. 11937) All. lil2. (6) A.LR. 962 T<l\4d. 497.

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AVTAR v. STATE (Sarkar J.)

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that section and we are of opinion that the legislature intended section 50 to apply to an offence of this nature." We are in complete agreement with this statement of the law.

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We may now set out the reasons on which the contrary view was taken and state why we are unable to accept them. In B State v; Magan/al Chuni/al B9gawat(') it was stated that s. 39 of the Electricity Act only extended the operation of s. 379 (s. 378?) of the Penal Code and Vishwanath's case( 2 ) was wrongly . decided as s. 39 expressly made the dishonest abstraction of In electrical energy an offence punishable under the Code. Tutsi Prasad v. The State(') an additional reason in support of the same view was given and that was that s. 39 could not create an offence as it did not provide for any punishment. The case of Public Prosecutor v. Abdul Wahab(') seems to have proceed ed on the basis that s. 39 created a fiction by which something which was not a theft within the Indian Penal ·Code ~ecame one under it and so the offence was really under the Code. It was D also stated that the purpose of the fiction was merely to create an offence but 'as the punishment for it was provided only under the Indian Penal Code, the offence really became one under the latter statute.

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With regard to the first reason that s. 39 of the Act extended the operation of s. 378 of the Code, it seems to us beyond question thats. 39 did not extends. 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 s. 39, would not include a theft of electricity for electricity to be movable property. The only way in which it. can be said that s. 39 F extended s. 378 is by stating that it made something which was not a theft under s. 378, a theft within the meaning of that sec It follows that if s. 39 did so, it created the offence itself tion. In this view of the matter we do not and s. 378 did not do so. think it possible to say that the thing so made a theft and an offence, became one by virtue of s. 378.

is not considered

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Next as to s. 39 not providing for a punishment, apart from the question whether an offence can be created by a statutory provision without that provision itself providing for punishment, on which we express no opinion, we think it clear that s. 39 must be read as providing for a punishment. · First it is dear to us that the Act contemplated it as doing so, for ss. 48 and 49

(1) A.J.R. 1956 Bom. 354. (3) (1964) I Cr. L.J. 472.

(2) I.LR. (1937) All. 102. (4) (1964) L.W. (Madras) 271. (F.B.)

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) it was also stated that the offence of abstrac- D

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speak of penalties imposed by s. 39 and acts punishable under it. In Public Prosecutor v. Abdul W ahab ( 1 ) it was stated that the language used in ss. 48 and 49 cannot be regarded as strictly accurate. Such an interpretation is not permitted for "the words of an Act of Parliament must be construed so as to give sensible meaning to them." The words ought to be construed ut res magis valeat quam pereat: Curtis v. Stovin('). And we find no difficulty in taking the view that s. 39 docs provide for a punishment. It says that the dishonest abstraction of energy shall be deemed to be theft within the meaning of the Indian Penal Code. The section, therefore, makes something which was not a tileft within that Code, a theft within it, for if the abstraction was a theft It follows within the Code, the section would be unnecessary. from this that the section also makes that theft punishable in the manner provided in it, for if the act is deemed to be a theft with- in the Code it must be so deemed for all purposes of it, including In State v. Magan/a/ the purpose of incurring the punishment. Chunilal Bogawat( 8 lion of energy is by s. 39 expressly made punishable under s. 379. We find no such express provision in s. 39. Even if there was such a ~provision in the Act, the liability to punishment woulc arise not under the Code but really because of s. 39. It will be impossible to hold that without s. 39 there is any liability to punishment under the Code for any abstraction of electrical In Public Prosecutor v. Abdul Wahab(') it was obser- energy. ved that since s. 39 created a theft within the meaning of the Indian Penal Code by means of a fiction, it followed that as the fiction could not be departed from, the offence so fictionally created was one under the Code. We are unable to appreciate If a provision says that something which is not thi~ reasoning. an offence within the meaning of another statute is to be deemed to be such, the offence is, in our view, created by the statute which raises the fiction and not by the statute within which it is · to be deemed by that fiction to be included. If the other view was correct, it would have to be held that the offence was one within the last mentioned statute proprio vigore and this clearly it is not. At this stage we might point 0ut that in Abdul Wahab's(') case it was stated that "It can be accepted that s. 39 of the Act creates It seems to us that if so much is conceded, it is an offence." impossible to say that s. 50 would not apply to a prosecution in respect of it for it applies to every prosecution "for any offence against this Act".

(i)(l964) L.W. (Madras)-271. (P.B.)

(2) (1889) 22 Q.B.D. 513, 517.

(3) A.l.R. 1956 Born. 354.

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lt.VTAI v. STA.TB (Sarkar /.)

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To pllt it shortly, dishonest ab9traction of electricity men- tiooed in s. 39 cannot be an offence under the Code for um:ler it alone it is not an offence; the dishonest abstraction is by s. 39 made a theft within the meaning of the Code, that is, an offence of the 'fariety d~bed in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, B namely s. 3'9 of the Act, must be said to create the offence. Since the abstraction is by s. 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 f9r under -it abstraction of energy is not an offence at all.

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is not defined · in

We may now refer to certain general considerations also lead- ing to the view which we have taken. First, we find that the heading which governs ss. 39 to 50 of the Act is KCriminal Offences and Procedure". Obviously, therefore, the legislature thought that s. 39 created an o1fence. We have also said that SS. D 48 and 49 iadicatc that ill the legislature's cont~tion s. 39 provided for a punishment. That section must, therefore, also have been intended to create an offence to which the punishment was to attach. The word 'offence' the Act. Since for the reasons earlier mentioned, in the legislature's view s. 3 9 created an offence, it has to be held, that that was one of the otfences to which s. 50 was intended to apply. Lastly, it seems to us that the object of s. 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications. That is why it is left only to the aiuthorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. There is no dispute that s. 50 would apply to the offences mentioned in ss. 40 to 47. Now it seems to us that if we are right in o~r view about the object of s. 50, in principle it would be impossible to make any distinction bet ween s. 39 and any of the sections from s. 40 to s. 47. ·Thus s. 40 makes it an offence to . maliciously callSe · energy to lie If. in respect of waste of energy s. 50 is to have appli cation, there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by s. 39. For all these reasons we think that the present is a case of an offence against the Act and the prosecution in respect of that offence would be incompetent unless it was instituted at the ins- tance of a person named in s. 50.

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Learned counsel for the respondent also sought to contend that the present prosecution was at the instance of a person

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aggrieved by the theft. We do not think we should allow him A at this stage to go into that question. The appellant has all along been contending that his prosecution was ·bad ~use it was not at the instance of the Government or an Electrical Ins It was clearly for pector or a person aggrieved by the theft. the respondent if it was minded to go into that question, to establish that the prosecution had been instituted at the instance of a person aggrieved as it now seeks to do. It has never been disputed at any earlier stage that the prosecution had· not been at the instance of one of the persons mentioned. in s. 50. The onus of proving that fact was clearly on the respondent. It is a question of fact and we have no material on the record by which we can decide it. We, therefore, think that this case must be decided on the basis, as it was in the courts bclow, that the prosecution would be incompetent under s. 50 if it was in respect of an offence against the Act. We have found that it was in respect of such an offence.

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The result is that the appeal is allowed and the conviction

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of the appellant is set aside.

Appeal allowed.