http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: ADIMURTHY ALIAS B. MOORTHY

DATE OF JUDGMENT11/05/1983

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1983 AIR  822            1983 SCR  (3) 249  1983 SCC  (3) 268        1983 SCALE  (1)627

ACT:      Indian Electricity Act, 1910-Section 50-Scope of.      Words and phrases-"At the instance of "-Meaning of.

HEADNOTE:      On a  routine inspection  a  Supervisor  of  the  State Electricity Board  found that by tampering with the electric connection, the  respondent was  using switches,  lights and fans inside  the  house  without  the  meter  recording  any consumption. On  the direction  of the Assistant Engineer he lodged a  report against  the  respondent  with  the  police alleging theft of electricity by him.      The trying  Magistrate acquitted  the respondent of the offence with which he was charged on the ground that section SO of the Indian Electricity Act, 1910 did not authorise the Supervisor to  lodge a  complaint. The High Court upheld the Magistrate’s order  holding that  the notification issued by the Electricity Board authorizing, among others, supervisors to institute  prosecutions in terms of section SO not having been published  in the official Gazette, the Court could not take judicial  notice of  it and  that the  prosecution  had failed to  establish that  the supervisor  was competent  to lodge the complaint.      Allowing the appeal, ^      HELD  .   The  order   of  acquittal  recorded  by  the Magistrate as  affirmed by  the High  Court  proceeds  on  a construction of  section 50  of  the  Act  which  is  wholly unwarranted and  has resulted  in  manifest  miscarriage  of justice. Section  50 of  the Act  nowhere requires  that the authorisation should  be by  a notification published in the official Gazette.  The prosecution had been launched ‘at the instance of  the Electricity  Board within  the  meaning  of section 50  of the  Act. The  meaning of  the phrase ’at the instance of’ does not imply the same degree of obligation to obey as  does ’command’.  That is  also the  legal sense  in which the  phrase has  been understood  in section SO of the Act: [252 B-C-Dl      Ram Chander  Prasad Sharma  v. State  of Bihar  &  Anr, [1966] 3 S.C.R. 517 referred to.      Vishwanath v.  Emperor AIR  1936 All. 742; State (Dehli Administration) v.  Dharm Pal  1980 Crl. L.J. 1394; State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

Karnataka v. Abdul Nabi 1975 Crl. L.J. 746 approved. 250      The High  Court was  misled by  the  use  of  the  word ’notification’ contained  in the manual. The notification is a general  order issued  by the Board in terms of section 50 authorising  certain   of   its   officials   to   institute prosecutions  or   make  complaints   to  the   police   for instituting prosecutions for offences under certain sections of the  Act. It  was an  internal matter for the Electricity Board. It  is quite  clear upon the terms of section SO that the Supervisor  was authorised to lodge a complaint with the police.  The   Board,  being  a  public  authority,  it  was sufficient for  the prosecution  to have  placed on record a copy of  the manual  containing the  relevant notifications. That was  sufficient proof  of the  authorisation  requisite under section 50 of the Act. [254 F, 255 A-C]      Even if  the requirement  of section  50 was  that  the authorisation should  have been  by a notification published in the  official Gazette  that  would  have  hardly  made  a difference. [255 C-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 285 of 1983      Appeal by  Special leave  from the  Judgment and  order dated the 15th December, 1980 of the Karnataka High Court in Crl. A. No. 590 of 1979.      M. Veerappa for the Appellant.      Vimal Bobde A.C, and P.R. Ramasish for the Respondent.      The Judgment of the Court was delivered by      SEN, J.  This  appeal  by  special  leave  is  directed against  a  judgment  of  the  Karnataka  High  Court  dated December 15, 1980 affirming the order of acquittal passed by the   Munsiff    &   Judicial    Magistrate   First   Class, Krishnarajanagar  dated   July  10,   1979  acquitting   the respondent of  an offence  punishable under ss. 39 and 44 of the Indian  Electricity Act, 1910 read with s. 379 of Indian Penal Code. 1860.      The prosecution case in brief was as follows. On August 25, 1976  at about  12 noon  P.W. 1  Syed Ameer, Supervisor, Karnataka Electricity  Board,  went  to  the  house  of  the respondent on  a routine  inspection to  check the  electric meter installed  there. He  found the  meter  board  at  the entrance and  though the meter was not recording consumption of electric energy, the lights and fans were on. It appeared that the respondent had tampered with the main connection by fixing two  switches  to  the  wall  of  the  house  and  by operating the 251 switches the  lights and fans inside the house could be used without the  meter recording  any consumption.  Later in the day, he  along A with the Assistant Engineer attached to the Karnataka Electricity Board, Krishnarajanagar and the Junior Engineer went  to the  house of  the respondent and saw that there was  theft of  electric energy.  Accordingly,  on  the direction of  the Assistant  Engineer,  P.W.  1  Syed  Ameer lodged  a   report  with   the  police  Ex.  P-l.  After  an investigation  into   the  complaint,  the  Krishanrajanagar police filed a challan. The prosecution led evidence of five witnesses including  that of  P.W. 1  Syed Ameer, Supervisor and P.W.  2 Bheemanna,  Junior Engineer  to substantiate the charge. The  learned trying Magistrate however acquitted the respondent of the offence with which he was charged under s.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

248 (1)  of the  Code of  Criminal Procedure,  1973  on  the ground that  the prosecution  had failed  to establish  that P.W. 1  Syed Ameer had been authorized to lodge a complaint. On a  reading of  s. SO  the Act,  he  held  that  a  Junior Engineer of  the Electricity  Board could  lodge a complaint but not  the Supervisor, and the mere presence of the Junior Engineer after  detection of  the theft, does not imply that the Supervisor had been authorised to lodge a complaint. The High Court  has upheld  the order of acquittal passed by the learned  trying   Magistrate  on   the   ground   that   the notification  issued  by  the  Karnataka  Electricity  Board authorizing   Junior   Engineers,   Section   officers   and Supervisors to  institute prosecutions  in terms of s. SO of the Act  not having  been published in the official Gazette, the Court  could  not  take  judicial  notice  of  any  such notification and it was for the prosecution to lead evidence in proof  thereof to  establish that  P.W. 1  Syed Ameer was competent to  lodge a complaint. lt rejected a prayer of the learned public  prosecutor to  lead additional  evidence  in proof of  the notification  on  the  ground  that  would  be tantamount to  allowing the  prosecution to fill up a lacuna in the case.      The  decision   of  the   appeal  must   turn  on   the construction of s. SO of the Act which reads as follows:           "50. Institution  of prosecutions - No prosecution      shall be  instituted against any person for any offence      against  this   Act  or  any  rule,  licence  or  order      thereunder, except at the instance of the Government or      an Electrical  Inspector, or  of a  person aggrieved by      the same."      According to  the plain  English language, the ordinary meaning  of   the  phrase   "at  the  instance  of"  in  the collocation of words "No 252 prosecution shall  be instituted  .. except  at the instance of" A must, in the context in which it appears, mean ’at the behest of,  or, at the solicitation of’. The word ’instance’ as a  verb means "to urge, entreat urgently, importune". The meaning of  the phrase  "at the  instance of"  as  given  in Random House  Dictionary of  the English  Language at p. 690 is: ’at  the urging  or suggestion  of’. ’Instance’ does not imply  the  same  degree  of  obligation  to  obey  as  does ’command’. That  is also the legal sense in which the phrase "at  the  instance  of"  in  s.  50  of  the  Act  has  been understood. It  is clear  upon the  terms of  s. SO  that it nowhere requires  that the  authorization  should  be  by  a notification published in the official Gazette.      The  order   of  acquittal   recorded  by  the  learned Magistrate and  as affirmed  by the High Court proceeds on a construction of s. SO of the Act which is wholly unwarranted and has  resulted in  manifest miscarriage of justice. There can be  no doubt  that the prosecution had been launched "at the instance  of’’ the  Electricity Board within the meaning of s.  SO of  the Act. The Karnataka Electricity Board which is a  statutory body  had issued  a notification No. KEB/A5/ 6053/7374/SOL/401/72 dated  April 18, 1974 which finds place in the  Karnataka Electricity Board Manual, Vol. 1, 2nd edn. at p. 80 which is to the following effect:      Section 134 (4) (iv):           Superintending  Engineers,   Executive  Engineers,      Assistant Engineers, Junior Engineers, Section officers      and   Supervisors    are   authorised    to   institute      prosecutions or  make complaints  to the jurisdictional      officers in  charge of Police Stations, for instituting      prosecutions when  offences under  any of  the Sections

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    39, 41,  43 and  44 of  the Electricity  Act or Rule 56      read  with  Rule  138  of  the  Electricity  Rules  are      committed or  are  reasonably  believed  to  have  been      committed in their respective jurisdictions."      The matter  is no  longer res  integra. In  Ram Chander Prasad  Sharma  v.  State  of  Bihar  &  Anr.(l)  the  Court observed:           "It is  true that  Bhattacharya was  not himself a      "person aggrieved" and that the "person aggrieved" was 253      the P.E.S.  Co. The  P.E.S.  Co.  however.  is  a  body      corporate and  must act  only through  its directors or      officers. A  Here we  have the evidence of Ramaswami to      the effect  that he  held a  general power  of attorney      from the  P.E.S. Co.,  and  that  he  was  specifically      empowered thereunder to act on behalf of P.E.S. Co., in      all legal  proceedings. The  evidence shows that it was      at his  instance that  Bhattacharya launched  the first      information report and, therefore, it would follow that      the law was set in motion by the "person aggrieved"."      Interpreting the  phrase "at  the instance" in s. SO of the  Act,   the  Allahabad   High  Court  in  Vishwanath  v. Emperor(l) stated:           "If it  had been  the intention of the Legislature      that no  case should  be instituted  in Court except by      the  Electric  Company  itself  or  the  other  persons      mentioned in  S. 50  of the Act, the Legislature would,      we  think   have  used  the  ordinary  phrase  "on  the      complaint of"  and the  section would  have been on the      lines that  no Magistrate should take cognizance of any      offence referred  to in  S. SO  of the Act, except upon      the complaint  of certain  persons. The  phrase "at the      instance of" means merely "at the solicitation of or at      the request of"."      In that  case the  prosecution was  in fact launched by the police  at the behest of the electric supply company and the High  Court held  that there  could be no doubt that the company desired  that the  accused should  be prosecuted for the offences. The officers of the company had discovered the theft and  they had,  as here,  reported the  matter to  the police and  asked the police to make an investigation, as in the instant case. Upon these facts, the Allahabad High Court held that  the prosecution had been launched at the instance of the  electric supply  company within the meaning of s. SO of the  Act. That  construction of  s. SO  of the Act by the Allahabad  High  Court  in  Vishwanath’s  case,  supra,  has throughout been followed.      We find  that the  Delhi High  Court  in  State  (Delhi Administration v.  Dharam Pal(2)  as well  as the  Karnataka High Court in State 254 of Karnataka  v. Abdul  Nabi(l) have  taken  the  same  view placing A  emphasis on  the circular  issued by  the General Manager  laying   down  the  procedure  to  be  followed  in launching prosecutions  of theft of electricity which was in terms similar  to the  notification issued  by the Karnataka Electricity Board.  It is  unfortunate that  the  learned  - Judges of  the Karnataka  High Court should have disregarded their earlier  judgment in  Abdul Nabi’s  case, (supra) more so, when  one of  them was  a member  to the  earlier Bench. After referring  to the judgment of the Allahabad High Court in Vishwanath’s case (supra) as to the meaning of the phrase "at the  instance of.’,  the High Court had earlier observed in Abdul Nabi’s case, (supra):           "Where, therefore,  a person  acting  for  and  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    behalf of  the Board  lodges a complaint with Police in      respect of  unlawful extraction  of electric energy and      the police in turn file a charge sheet, the prosecution      must be  regarded as  instituted at the instance of the      Board."      In the  instant case,  the High  Court  refers  to  the concession of  the learned  Government  Advocate  that  ’the notification had not been published in the official Gazette’ and observes:           "In that view of the matter, it is plain that this      Court cannot  take judicial notice of existence of such      notification  and   the   facts   contained   in   that      notification. The  prosecution ought  to  have  led  in      evidence on  producing this  notification to  establish      that P.W.  I was legally authorized to prosecute within      the meaning  of s.  SO of  the Act. It has failed to do      so." It appears  that the  High Court was obviously misled by the use of  the word ’notification’ contained in the Manual. The Karnataka Electricity Board is constituted under s. 5 of the Electricity (Supply) Act, 1948. Under s. 12 of that Act, the Electricity Board  is  a  body  corporate  having  perpetual succession  and   a  common   seal.  The  Electricity  Board therefore  is  an  artificial  person  and  depends  on  its officers and servants to carry out its powers, functions and duties. The aforesaid notification is a general order issued by the  Electricity Board  in terms  of s.  50  of  the  Act authorizing   the    Superintending   Engineers,   Executive Engineers, Assistant  Engineers, Junior  Engineers,  Section Officers and Supervisors to institute prosecutions or 255 make complaints  to the  police for instituting prosecutions offences under  any of the Sections 39, 41, 43 and 44 of the Electricity Act  or A  Rule 56  read with  Rule 138  of  the Electricity Rules  are committed  or are reasonably believed to have been committed in their respective jurisdictions. It was an  internal matter  for the Electricity Board and it is quite clear  upon the terms of s. SO that P.W. I Syed Ameer, Supervisor was  authorized to  lodge a  complaint  with  the police. The  Electricity Board  being a public authority, it was sufficient  for the prosecution to have placed on record a copy  of the  Manual containing the relevant notification. That was  sufficient proof  of the  authorization  requisite under s. 50 of the Indian Electricity Act, 1910.      It may  not be out of place to mention that even if the requirement of  s. SO of the Act were that the authorization should have been by a notification published in the Official Gazette, that would hardly make a difference. The phrase "by notification in  the official  Gazette" occurs in s. 6(1) of the Criminal Law Amendment Act, 1952 and it is also occurred in. s.  16 of the Criminal Law Amendment Act, 1908 and s. 22 of the Code of Criminal Procedure, 1908. In Balkrishan Anant v. Emperor(1), Beaumont C.J. while dealing with s. 16 of the Criminal Law  Amendment Act,  1908 which empowered the local Government  by  notification  in  the  official  Gazette  to declare an  association unlawful  on the  grounds  mentioned therein which are in effect that the association constitutes a danger to the public peace, observed:           "The word  used in s. 16 is ’notification’ and not      ’insertion’. ’Notification’  is  defined  in  Webster’s      Dictionary as  "Act of  notifying; act of making known;      an intimation  or notice;  esp., act of giving official      notice or information by words, by writing, or by other      means;" so  that the  essence of  notification  is  the      giving of  notice, and  in my  opinion, the  words  "by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

    notification in  the official  Gazette" mean simply "by      giving notice in the official Gazette."      In the  context of  s. 16 of the Criminal Law Amendment Act, 1908  the Court  required a stricter proof that all the formalities requisite  to the  act of  notifying or in other words, publishing the notification had actually been carried out. That was because the law under 256 which it  was issued  trenched upon the rights and liberties of the citizens.      Finally, a  few words on the merits. On a consideration of the  evidence adduced,  the learned  Munsiff came  to the conclusion that  the prosecution  had established  its  case against the respondent beyond all reasonable doubt, but on a misconstruction of  s. SO of the Act, acquitted him under s. 248(1) of  the Code.  In maintaining the order of acquittal, the High  Court confined  its decision on its interpretation of s.  50 of  the Act and has not touched upon the merits We have gone through the evidence and we are satisfied that the evidence led  by the  prosecution is  sufficient to raise an inference of  guilt against  the  respondent.  This  is  not contested by learned counsel for the respondent, but he only pleads that  a lenient view should be taken in regard to the punishment.      For these  reasons, the appeal succeeds and is allowed. The judgment  of the  High Court  of Karnataka upholding the order of  acquittal of the respondent is set aside and he is convicted of having committed an offence punishable under s. 39 of  the Indian  Electricity Act, 1910 read with s. 379 of the Indian  Penal Code,  1860. The  learned standing counsel made it clear at the time of grant of special leave that the State Government was only desirous that the law on the point should  be   settled  and  it  was  not  interested  in  the imposition of  a punishment  on the  respondent. In  view of this, we  do not  impose any  sentence  on  the  respondent, having regard to the period of time that has elapsed.      We are  thankful to  Shri V.  A. Bobde  who appeared as amicus curiae for the assistance that he has rendered. P.B.R.                                       Appeal allowed. 257