(1.) By this petition the petitioner has sought quashing of the proceedings pending in the Court of Shri Chandra Bose, Metropolitan Magistrate, Karkardooma, Delhi vide FIR No-92/91 under Sections 39/44 of Indian Electricity Act, 1910 (in short the Act) read with Section 379 of Indian Penal Code . inpolice Station Nand Nagri.
(2.) The main grievance of the petitioner is that the petition under Section 39 of the Act does not empower the respondents to prosecute the petitioner under Section 379 Indian Penal Code . Moreover, under Section 167 of Cr.P.C. the charge sheet ought to have been filed within 60 or 90 days as the case may be. Whereas the challan has in fact been filed beyond the statutory period by the prosecution, therefore, the Trial Court ought not to have taken cognizance on this case.
(3.) To stress his arguments, Mr. Saif has placed reliance on the decision of Supreme Court in the case of Avtar Singh v. State of Punjab, 1965 (1) SCR page 103 wherein the Apex Court observed that where the accused has been prosecuted and convicted for theft of electrical energy under Section 39 of the Act. Then such an offence has to be instituted at the instance of the persons mentioned in Section 50 of the Act. Therefore the conviction of the appellant must be set aside. The Supreme Court further observed that dishonest abstraction of electricity mentioned in Section 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 theft within the meaning of the Code, i.e. an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the Section which raises fiction, namely Section 39 must be said to create the offence. Relying on these observations, Mr. Saif contended that no offence under Section 379 of the Code has been made out, therefore, the petitioner could not be charged under that provision.