GOVIND Vs. STATE

JUDGEMENT

(1.) THE judgment impugned is passed in appeal (Cr. Appeal No. 7/97) by. Addl. Sessions Judge, Narsinghgarh, where by the learned A. S. J. while affirming applicant's conviction under Section 39 of the Indian Electricity Act read with Section 379, IPC, has set aside the sentence of 6 months RI, passed by Judicial Magistrate Second Class, Narsinghgarh in Criminal Case No392/ 99 and instead sentenced the accused-applicant to pay fine Rs. 10,000/- and in default to undergo 4 months SI.

(2.) HAVING heard learned counsel for the applicant and the PP for the respondent-State in my judgment, not only the judgment passed by the Appellate Court below, but also the one of the Trial Magistrate should be quashed.

(3.) THE offence under Section 39 of the Indian Electricity Act, 1910 as substituted by the Act No. 31 of 1986 is now punishable with imprisonment for a term which may extend for 3 years or with fine, which shall not be less than Rs. 1,000/- or with both. Earlier to this Amendment 1986 the offence of theft of energy was punishable with the aid of Section 379, IPC, which was triable by any Magistrate. Now, Section 39 as substituted by the said Amendment constitutes distinct offence which is punishable as aforesaid. The Act of 1910 does not provide as to by which Court the offence is punishable. Under the circumstance, the residuary clause contained in Part-II of Ist Schedule of the Cr. PC, 1973 shall apply and which provides that the offence against other laws like the one in hand, if punishable with imprisonment for 3 years and upward, but not less than 7 years, shall be triable by Magistrate of the Ist Class. It is only when such an offence is punishable with imprisonment for less than 3 years or with fine only that it can be tried by any Magistrate. As already pointed out the offence under Section 39 of the Act, 1910 is punishable with imprisonment which can extend upto 3 years. The offence was, thus, triable only by a Magistrate of the Ist Class and the Magistrate IInd Class, Narsinghgarh, who tried the offence had no jurisdiction to try it. The entire trial held by the Magistrate and the judgment passed by him was, thus, without jurisdiction and is liable to be quashed.