PUBLIC PROSECUTOR Vs. ABDUL WAHAB

JUDGEMENT

(1.) THIS reference, which has been made by Kailasam J: arises out of an appeal filed by the Public Prosecutor against an order passed by the Sub-Magistrate, Papanasam, acquitting respondents 1 to 6 herein of certain offences connected with and relating to an alleged improper abstraction and use of electrical energy. The question that falls to tie decided on this reference can he formulated thus:"whether a dishonest abstraction, consumption and or use of electrical energy, which is statutorily made a theft by virtue of Section 39 of the Indian Electricity Act, will amount to an offence against that Act, or one under Section 379 of the I. P. C. "To appreciate the significance of the question, and indeed1 to examine it, it will be necessary first to briefly set out the history, of the proceedings, which have led up to this reference. Abdul Wahab, the first respondent: before us, is a resident of pandaravadai in Tanjore Dt. In connection with the marriage of his daughter, which took place on 7-9-1960, he put up a pendal in front of his house, which occupied the entire breadth of the street, extending in its length to the neighbouring houses ore either side. With a view to have illuminations to the pandal, Abdul Wahab secured from the Kumbakonam Electric Supply Corporation, the licensee under the Act for the area in question, a temporary connection for the supply of electrical energy. On 9-9-1960, when presumably, the celebrations in connection with the marriage also continued, the Chief Engineer of the corporation, who made a surprise inspection of the pandal, found that the electricity for the illuminations must have been obtained surreptitiously by tampering with the meters in the houses adjacent and opposite to that of the first respondent. He also found some evidence of such illicit tapping of electricity from those house. He estimated that the quantum of current consumed by the lights in the pandal must have been more than what the temporary meter indicated. The Chief engineer lodged a complaint with the Sub-Magistrate of Police at Papanasam, who, after investigation, laid three charges against the respondents, respondents 2 to 5 being the owners of the opposite and adjacent houses of the first respondent and respondent 6 being an operative. The first charge was Under Section 379 I. P. C. read with Section 39 of the Indian Electricity Act 4which will hereafter be referred to as the Act) for stealing electricity. The two subsequent charges were under 'secs. 44 (c) and 44 (d) of the Act.

(2.) THE learned Sub Magistrate acquitted the respondents. The State has filed this appeal against the order of acquittal.

(3.) WE shall, however, consider the argument apart from that criticism. It has been argued that a case like the present can be regarded as falling in one of the four categories mentioned below, namely-1. Doos Section 39 of the Act amend Section 378, I. P. C. ? 2. Can Section 39 be regarded as having been incorporated in Section 378, I. P. C. or vice versa? 3. Cam Section 39 be regarded as referring to Section 378, I. P. C. ? 4. If it is neither of the above three, can not Section 39 be regarded as itself creating am offence, the reference to Section 378 I. P. C. being merely to indicate! the manner and method of prosecution for its infringement? taking up the first of the four alternatives, it is argued that Section 39 by no melans can be regarded as effectuating an amendment of to Section 378, I. P. C. because: (i) it does not purport to do so and (ii) it cannot be called as either an omission, insertion or substitution of anything contained in Set. 378 I. P. , C. By way of example, it is said, that if Section 39 of the Act were to be repealed, it cannot be said that the amendment effected will not also stand repealed and that therefore the characteristic of amending legislation as referred to in Section 6-A of the General Clauses Act will be absent in the case. The provision, Section 6-A, makes the repeal of an Act, which had the effect of textual amendment to another act, as not affecting in any way the Amended Act. We are by no means satisfied that if Section 39 were to be regarded as amending Section 373 I. P. C. the repeal of it will not have the corresponding effect of repealing the amendment thereby effected to the Indian Penal Code. But it is not necessary to pursue this matter in the view we are inclined to take of the nature of the provisions contained in section 39 of the Act.