OM PRAKASH Vs. STATE

JUDGEMENT

(1.) THIS is a reference, submitted by Mr. S.R. Singhi, Additional Sessions Judge, Churu, recommending that the order of Civil Judge cu -Magistrate First Class, Bhatnagar, dated March 8, 1969, be quashed.

(2.) THE brief facts of this case, as alleged by the prosecution, are that Assistant Engineer, Rajasthan State Electricity Board, Sujangarh, made a complaint to the police station, Sujangarh, on December 29, 1967, that Om Prakash Sadhu Ram, Contractor, broke -open and tampered with the seal of his power -connection meter at Randishar and committed theft or electric energy. He asked the police to take cognizance of the offence under Section 39 of the Indian Electricity Act, 1910 (hereinafter referred to as the Act). On receipt of this report the police investigated the matter and put un a challan against accused Om Prakash in the court of Civil Judge cum First Class Magistrate, Ratangarh. In the course of trial Om Prakash was charged under Section 379, I PC, read with Section 39 of the Act. Against that indictment a revision petition was filed in the court of Additional Sessions Judge, Churu. The learned Additional Sessions Judge has observed that the accused could not have been charged under Section 379, I.P.C. read with S39 of the Act. He should have been indicted only under Section 39 of the Act. Learned Additional Sessions Judge has further pointed out that by virtue of Section 50 of the Act the prosecution could not have been instituted at the instance of the Assistant Engineer, Rajasthan State Electricity Board, Rajasthan.

(3.) DISHONEST abstraction of electricity mentioned in Section 39 of the Act cannot be an offence under the Indian Penal Code, for electricity is not considered to be a moveable property Section 378, I.P. C, read by itself even after the enactment of Section 39 of the Act, would not include a theft of electricity. The only way in which it can be said that Section 39 of the Act extended Section 378 of the code is by stating, that it made something, which was not a theft within the ambit of Section 378, I.P.C. a theft within the meaning of that section. The heading 'Criminal Offences and Procedure' which governs Sections 39 to 60 of the Act shows that the Legislature enacted Section 39 to create an offence. Section 48 and 49 of the Act indicate that in the Legislature's contemplation Sr 39 provided for punishment. That section must, therefore, also have been intended to create an offence to which punishment was to attach vide Avtar Singh v. State of Punjab AIR 1965 SC 566. Section 39 of the Act by a legal fiction brings within the ambit of Section 378 of the Code dishonest abstraction of energy within the four -corners of theft, punishable under Section 379, I.P.C. The combined operation of Section 39 of the Act and Section 378 and 39, I.P.C would mean that friction of the former would be penalised by proceeding under the latter In this view of the matter, the trial court could have framed charge under Section 379 I.P. C lead with Section 39 of the Act. The offence of dishonest abstraction, consumption or user of electricity would clearly fall within the mischief of Section 379, I.P. C read with Section 39 of the Act. A reference in this connection may also be made to State v. Magan Lal Chunni Lal : AIR1956Bom354 .