24 August 1964
Supreme Court


Case number: Appeal (crl.) 42 of 1963






DATE OF JUDGMENT: 24/08/1964


CITATION:  1965 AIR  666            1965 SCR  (1) 103

ACT: Indian  Electricity Act (9 of 1910), ss. 39  and  50-Offence under s.  39-If   against   the   Act-Who   can    institute prosecution.

HEADNOTE: 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 was  for an  offence against the Act it was incompetent, because,  it had  not  been  instituted at the instance  of  any  of  the 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  )lone it is not an  offence;  the  dishonest abstraction  is  by  that section made a  theft  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. [107A-C, E-G]. Emperor v. Vishwanath, I.L.R. [1937] All. 102, Dhoolchand v. State [1956] I.L.R. 6 Raj. 856 and In re.  P. N. Venkatarama Naicker, A.I.R. 1962 Mad. 497, approved. State  v, Maganlal Chunilal Bogawat, A.I.R. 1956  Bom.  354, Tulsi Prasad v. The State, (1964) 1 Cr.  L.J. 472 and Public Prosecutor   v.  Abdul  Wahab,  (1964)  L.W.   271   (F.B.), overruled.



JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 42  of 1963. Appeal  by special leave from the judgment and  order  dated November  1.  3, 1962 of the Punjab High Court  in  Criminal Revision No. 648 of 1962. O. P. Rana, for the appellant. Gopal Singh and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Sarkar  J.  The  appellant  was  prosecuted  for  theft   of electrical  energy from the Punjab State  Electricity  Board and 104 was convicted.  In this appeal the appellant has not  sought to  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. The  statute concerned is the Indian Electricity Act,  1910. Section  39  of  the  Act, so  far  as  material,  provides, "Whoever dishonestly abstracts, consumes or uses any  energy shall  be deemed to have committed theft within the  meaning of  the Indian Penal Code".  It is not in dispute  that  the appellant had committed 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  Government  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 incompetent 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  person  mentioned  in  S.  50,  the prosecution gave no materials for a decision. The  statute concerned is the Indian Electricity Act,  1910. the Act or not has come up before the High Courts on several occasions and the decisions disclose a diversity of opinion. It  will  be convenient to refer to these opinions  at  this stage.   In  State  v. Maganlal  Chunilal  Bogwat(1),  Tulsi Prasad  v.  The  State(2) and  Public  Prosecutor  v.  Abdul Wahab(3),  it  was held that the theft was  not  an  offence against the Act while the contrary view was taken in Emperor v. Vishwanath(4), Dhoolchand v.    State(5) and In re P.  N. Venkatarama  Naicker(6). In our opinion, the view  expressed by  the Allahabad High Court in Emperor v. Vishwanath(4)  is 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 379 of the Indian Penal Code if it had not  been  for the provisions of section 39  of  the  Indian Electricity  Act.  It was, therefore, an offence  which  was created by (1)  A.I.R. 1956 Bom. 354. (2)  (1964) 1 Cr.  L.J. 47 (3)  (1964) L.W. Madras 271. (F.B.) (4)  I.L.R. (1937) Al. 102. (5)  (1956) I.L.R. 6 Raj. (6)  A.I.R. 1962 Mad, 497.



105 hat  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. We  may now set out the reasons on which the  contrary  view was  taken and state why we are unable to accept  them.   In State v. Maganlal Chunilal Bogawat(1) 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 electrical energy an offence punishable under the  Code.   In Tulsi Prasad v. The State(3)  an  additional reason  in support of the same view was given and  that  was that s. 39 could not create in offence as it did not provide for any punishment.  The case of Public Prosecutor v.  Abdul Wahab(4)  seems  to have proceeded on the basis that  s.  39 created  a fiction by which something which was not a  theft within the Indian Penal Code became one under it and so  the offence was really under the Code.  It was 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. 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  that s. 39 did not extend s.  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 is not considered to be  movable  property. The only way in which it can be said that s. 39 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- tion.   It  follows  that if s. 39 did so,  it  created  the offence  itself and s. 378 did not do so.  In this  view  of the matter we do not think it possible to say that the thing so  made a theft and an offence, became one by virtue of  s. 378. 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 clear to us that the Act  contemplated  it  as doing so, for ss. 48 and 49 (1) A.I.R. 1956 Bom. 354.   (2) I.L.R. (1937) All. 102. (3) (1964) 1 Cr.  L.J. 472.        (4) (1964) L.W.  (Madras) 271. (F.B.) 106 speak  of  penalties imposed by s. 39  and  acts  punishable under  it.   In Public Prosecutor v. Abdul Wahab(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(2).  And we find no difficulty  in  taking the view that S. 39 does 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  theft within that Code, a theft within it, for if the  abstraction was   a  theft  within  the  Code,  the  section  would   be unnecessary.   It  follows 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 within the  Code  it must  be  so deemed for all purposes of  it,  including  the purpose  of incurring the punishment.  In State v.  Maganlal Chunilal  Bagawat(3) it was also stated that the offence  of abstraction 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  would 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 energy.   In  Public Prosecutor  v. Abdul Wahab(1) it was observed 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 this reasoning.  If a provision says that something which is not  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 out that in  Abdul  Wahab’s(1) case  it was stated that "It can be accepted that s.  39  of the Act creates. an offence." It seems to us that if so much is  conceded, it is) 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". (1)  (1964) L.W. (Madras) 271. (F.B.) (2) (1889) 22 Q.B.D. 513, 517. (3) A.I.R. 1956 Bom. 354. 107 To put it shortly, dishonest abstraction of electricity men- tioned  in  S. 39 cannot be an offence under  the  Code  for under   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 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 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  for under it abstraction of energy is  not  an offence  at  all.  We  may  now  refer  to  certain  general considerations also leading to the view which we have taken. First,  we find that the heading which governs ss. 39 to  50 of the Act is "Criminal Offences and Procedure".  Obviously, therefore,  the  legislature thought that s. 39  created  an offence.  We have also said that ss. 48 and 49 indicate that in  the  legislature’s contemplation 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’ is not defined  in  the  Act. Since   for   the   reasons  earlier   mentioned,   in   the legislature’s  view s. 39 created an offence, it has  to  be held  that  was  one  of the offences 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



authorities  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 our view about the object of s. 50, in principle it would be impossible to make any distinction between s. 39 and any  of the  sections from s. 40 to s. 47.  Thus s. 40 makes  it  an offence  to  maliciously cause energy to be wasted.   If  in respect  of  waste of energy S. 50 is to  have  application, 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 instance of a person named in s. 50. Learned  counsel for the respondent also sought  to  contend that the present prosecution was at the instance of a person 108 aggrieved by the theft.  We do not think we should allow him at  this stage to go into that question.  The appellant  has all  along  been  contending that his  prosecution  was  bad because  it was not at the instance of the Government or  an Electrical Inspector or a person aggrieved by the theft.  It was  clearly for 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  below,  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. The result is that the appeal is allowed and the  conviction of the appellant is set aside. Appeal allowed. 110