AMIRCHAND Vs. STATE

JUDGEMENT

(1.) This is a reference made by the Sessions Judge of Patna recommending that the conviction of the two accused persons under Section 379, I. P. C. and the sentence of fine of Rs. 15 each imposed upon them by the learned trying magistrate be set aside. The facts are as follows: In the morning of the 16th October, 1958, the two accused persons, who were mistries attached to the Electricity Department, were engaged in cutting a branch of a Karauni tree standing by the side of the Public Works Department road in front of the building of Paliganj police station. One of them, Amirchand, was doing the actual cutting of the branch of the tree while the other, Halkan, was directing him to do the work from underneath the tree. The work of cutting of the branch of the tree was noticed by Shri N.K. Prasad, then attached to Paliganj police station as an Inspector. The latter directed a constable to go and ask the accused persons to desist from cutting the branch since the tree was the property of the Public Works Department. But, the accused persons did not listen to the constable whereupon the Inspector himself went to the spot, and after seizing the branches of certain other neighbouring trees, which appeared to have been cut away a little earlier in the same morning, he instituted a case against the two mistries on his own statement and endorsed the same to an Assistant Sub-Inspector of police for investigation. After the necessary investigation, the Assistant Sub-Inspector submitted charge sheet against both the accused persons, who, in due course, were tried and convicted as aforesaid. They filed Criminal Revision No. 32 of 1960 before the learned Sessions Judge who has since made the present reference.

(2.) In his letter of reference the learned Sessions Judge has rightly pointed out that the facts proved in the case do not justify a conviction of the accused persons for the offence of theft. The learned Judge has observed that the petitioners were cutting the branch of the tree in good faith. This observation of the learned Judge receives ample support from certain provisions of the Electricity Rules. I may refer in this connection to Rule 59(2) which enables the supplier of electricity to take such reasonable precaution as might be necessary to avoid any accidental interruptions of supply or danger to the public or any employee or authorised person engaged on any operation during and in connection with the installation or maintenance of any works. I may also refer in this context to Section 82 of the Electricity (Supply) Act (Act 54 of 1948) which lays down that no suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act. In the present case the defence taken by the accused persons was that they were cutting the branch of the tree under the orders of their departmental superiors. It appears that the Sub-divisional Officer, incharge of Electricity, Shri J.K. Prasad (D. W. 1) had inspected the tree and had found that it was necessary to cut some of its branches which were overhanging the electric lines. In these circumstances, it is plain that there was no dishonest intention on the part of the accused persons in cutting the branch of the tree in question. The conviction of the accused persons must, therefore, be set aside on the ground of good faith.

(3.) Mr. Bindeshwari Prasad appearing on behalf of the Electricity Department has, however, raised another question before us and that is, that after the initial laying of the electric power lines it is within the powers of the officers of the Electricity Department to remove all obstructions by way of overgrowing branches which are calculated or likely to interrupt or interfere with the maintenance of the power lines. In support of this contention learned counsel has relied upon Section 12 of the Indian Electricity Act (Act 9 of 1910). The contention of learned counsel is that the provisions of Section 12 apply only to the stage when the electric supply lines are laid in any area for the first time. But, after that stage has passed, the contention of the learned counsel is that it is the duty of the Electricity Department to take whatever precaution may be necessary to avoid any accidental interruption of supply or danger on account of the maintenance of the works. It is, therefore, urged that in order to perform their statutory duties it should be open to the officers or men of the Electricity Department to cut away the branch or branches of any tree which appear to them to cause any obstruction or danger to the electricity supply line. It is, however, not possible to assent to such a broad proposition contended for by the learned counsel. It is material to refer to Section 18(3) of the Indian Electricity Act, which is in the following terms: