HANU GIRISH CH BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was prosecuted for theft of electrical energy under section 39 of the Indian Electricity Act, 1910 and having been found guilty was convicted and sentenced to RI for four months and fine of Rs. 1000/-in default to RI for one month more. In appeal, while the conviction was maintained the sentence was modified by remitting the fine but main training the substantive sentence. The prosecution started with the Junior Engineer (Electrical) lodging the F.I.R. with the Officer-in-charge, Morada P.S. on 17.6.1986 of his having found the petitioner as un-authorised using electricity by extending service connection from the L.T. Line. On investigation charge-sheet was submitted by the police and the petitioner was convicted on trial. Mr. Das, the learned counsel for the petitioner urged the question of the prosecution to have been still-born as having been launched by a Junior Engineer who was not authorised to institute the prosecution. In support of the submission reliance is placed on section 50 of the Indian Electricity Act, 1910 which is in the following words:

(2.) A reading of section 50 of the Act would show that the prosecution must be initiated at the instance of:

(3.) The words at the instance of would show that it is not contemplated that any of the four categories of persons at whose instance the case is to be launched are themselves to start the prosecution. It is only that their instance a prosecution can be started. At the instance would mean at the bidding of or according to the desire, solicitation or request. To establish that the prosecution has been validity started, the onus would undoubtedly be on the prosecution to prove that the prosecution in fact had been launched at the behest of one of the categories of persons as specified in section 50 of the Act. Avtar Singh v. State of Punjab, is a direct authority on the question. So far as the present case is concerned, admittedly the prosecution has not been launched at the instance of the Government, the State Electricity Board, or the Electrical Inspector. It is the specific case of the State that the investigation was started on the basis of the First Information Report lodged by the Junior Engineer (Electrical). A submission may be advanced that a prosecution is not launched by mere filing of the First Information Report and that it is properly launched only when the charge-sheet is filed. Even if such submission is accepted yet that would hardly improve the legal position since if prosecution is taken to have been started on the filing of the charge-sheet it has to be shown that the charge-sheet has been filed at the instance of any of the categories of persons as mentioned in Sec. 50 of the Act and if it is shown that the First Information Report was launched by such a person or was lodged by a person authorised or at the bidding of such a person, the prosecution can be said to have been validly instituted.