SK. ANSAR ALI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application is against the judgment and order dated 26.8.92 passed by the learned First Additional Sessions Judge, Howrah in Criminal Appeal No. 24/90 thereby affirming the judgment and order dated 10.9.90 passed by the learned Sub-Divisional Judicial Magistrate, Uluberia in G. R. Case No. 486/85 convicting the accused petitioner under Sec. 379 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year.

(2.) One Ranjit Kr. Mukherjee, Security Officer lodged a complaint with Bauria Police Station alleging commission of an offence under Sec. 379 read with Sec. 39 of the Indian Electricity Act against the petitioner. The allegation made against the petitioner is that on 3.10.85 at about 13.00 hours the informant had been to the house of the petitioner and found the accused person using electrical energy in his dwelling house for the last two years without any electric meter and authority by illegal tapping from the overhead electric line. The informant being the Security Officer of CESC and other Officers of CESC and police visited the house of the accused and detected the said offence. On completion of investigation a charge-sheet was submitted by the police under Sec. 379, I.PC. read with Sec. 39 of the Indian Electricity Act. The learned Sub-Divisional Judicial Magistrate, Uluberia by His order dated 10.9.90 found the accused person guilty of the offence and convicted him under Sec. 379 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year. Challenging the said order of conviction and sentence the accused petitioner preferred an appeal being Criminal Appeal No. 24/90 before the learned Sessions Judge, Howrah. By an order dated 26.8.92 the learned Additional Sessions Judge, First Court, Howrah, dismissed the said appeal and affirmed the judgment and order of conviction and sentence passed by the learned Magistrate. Against such order of dismissal of appeal passed by the learned Additional Sessions Judge, Howrah, the petitioner has come up before this Court in revision.

(3.) The learned Advocate of the petitioner submits that dishonest abstraction of electricity mentioned in Sec. 39 of the Indian Electricity Act cannot be an offence under Sec. 378 of the Indian Penal Code as the Electricity is not considered to be a movable property and as such the impugned judgment and order is liable to be set aside. It is the submission of the learned Advocate that the charge under Sec. 39 of the Indian Electricity Act read with Sec. 379 of the Indian Penal Code was itself bad in law. As the offence as contemplated in Sec. 39 of the Indian Electricity Act does not come within the meaning of 378 of the Indian Penal Code. The next submission made by the learned Advocate of the petitioner, although such point was not raised before the trial Court, is that the prosecution in this case was instituted on the basis of a complaint lodged by PW 1 who is the Security Officer of CESC and he was neither competent to lodge complain under Sec. 50 of the Indian Electricity Act nor he was authorised by the competent authority to do so and as such the entire proceeding was vitiated ss without jurisdiction. According to him the impugned judgment and order of conviction and sentence is liable to be set aside on this score alone.