Avtar Singh Vs. State of Punjab 
INSC 182 (24 August 1964)
24/08/1964 SARKAR, A.K.
CITATION: 1965 AIR 666 1965 SCR (1) 103
Indian Electricity Act (9 of 1910), ss. 39
and 50-Offence under s. 39-If against the Act-Who can institute prosecution.
The appellant was prosecuted and convicted
for theft of electrical energy under s. 39 of the Indian Electricity Act (9 of
1910). He contended that, as his prosecution was for an offence against the Act
it was incompetent, because, it had not been instituted at the instance of any
of the persons mentioned in s. 50 of the Act.
HELD : The conviction of the appellant must
be set aside.
The dishonest abstraction of electricity
mentioned in s. 39 of the Act cannot be an offence under the Indian Penal Code
for under it )lone it is not an offence; the dishonest abstraction is by that
section made a theft within the meaning of the Code, that is, an offence of the
variety described in the Code as theft. As the offence is created by raising a
fiction, the section which raises the fiction, namely s. 39 must be said to
create the offence. Since the abstraction is to be deemed to be an offence
under the Code, the fiction must be followed to the end and the offence so
created would entail the punishment mentioned in the Code for that offence. The
punishment is not under the Code itself for under it abstraction of energy is
not an offence at all. Further, the object of s. 50 of the Act is to prevent
prosecution for offences against the Act being instituted by any one who
chooses to do so because, the offences can only be proved by men possessing
special qualifications, and there is no reason why it should not have been
intended to apply to dishonest abstraction of energy made an offence of theft
by s. 39. [107A-C, E-G].
Emperor v. Vishwanath, I.L.R.  All.
102, Dhoolchand v. State  I.L.R. 6 Raj. 856 and In re. P. N. Venkatarama
Naicker, A.I.R. 1962 Mad. 497, approved.
State v, Maganlal Chunilal Bogawat, A.I.R.
1956 Bom. 354, Tulsi Prasad v. The State, (1964) 1 Cr. L.J. 472 and Public
Prosecutor v. Abdul Wahab, (1964) L.W. 271 (F.B.), overruled.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 42 of 1963.
Appeal by special leave from the judgment and
order dated November 1. 3, 1962 of the Punjab High Court in Criminal Revision
No. 648 of 1962.
O. P. Rana, for the appellant.
Gopal Singh and R. N. Sachthey, for the
The Judgment of the Court was delivered by
Sarkar J. The appellant was prosecuted for theft of electrical energy from the
Punjab State Electricity Board and 104 was convicted. In this appeal the
appellant has not sought to challenge the finding that he had committed the
He has only raised a point of law that his
conviction was illegal in view of certain statutory provisions to which,
therefore, we immediately turn.
The statute concerned is the Indian Electricity
Section 39 of the Act, so far as material,
provides, "Whoever dishonestly abstracts, consumes or uses any energy
shall be deemed to have committed theft within the meaning of the Indian Penal
Code". It is not in dispute that the appellant had committed the theft
mentioned in this section.
Section 50 of the Act provides, "No
prosecution shall be instituted against any person for any offence against the
Act.... except at the instance of the Government or an Electrical Inspector, or
of a person aggrieved by the same." The appellant's contention is that his
prosecution was for an offence against the Act and it was incompetent as it had
not been established that it had been instituted at the instance of any of the
persons mentioned, in s. 50. The Courts below held that the prosecution was not
for an offence against the Act and in that view of the matter held that s. 50
did not apply. On the question whether it had been instituted by a person
mentioned in S. 50, the prosecution gave no materials for a decision.
The statute concerned is the Indian Electricity
the Act or not has come up before the High
Courts on several occasions and the decisions disclose a diversity of opinion.
It will be convenient to refer to these
opinions at this stage. In State v. Maganlal Chunilal Bogwat(1), Tulsi Prasad
v. The State(2) and Public Prosecutor v. Abdul Wahab(3), it was held that the
theft was not an offence against the Act while the contrary view was taken in
Emperor v. Vishwanath(4), Dhoolchand v. State(5) and In re P. N.
Venkatarama Naicker(6). In our opinion, the
view expressed by the Allahabad High Court in Emperor v. Vishwanath(4) is the
correct one. The matter was there put in these words:
"The learned Sessions Judge was of
opinion that the offence was not an offence against the Act because it was one
punishable under the provisions of s. 379 of the Indian Penal Code. We think
that this would not have been an offence under section 379 of the Indian Penal
Code if it had not been for the provisions of section 39 of the Indian Electricity Act.
It was, therefore, an offence which was created by (1) A.I.R. 1956 Bom. 354.
(2) (1964) 1 Cr. L.J. 47 (3) (1964) L.W.
Madras 271. (F.B.) (4) I.L.R. (1937) Al. 102.
(5) (1956) I.L.R. 6 Raj.
(6) A.I.R. 1962 Mad, 497.
105 hat section and we are of opinion that
the legislature intended section 50 to apply to an offence of this
nature." We are in complete agreement with this statement of the law.
We may now set out the reasons on which the
contrary view was taken and state why we are unable to accept them. In State v.
Maganlal Chunilal Bogawat(1) it was stated that s.
39 of the Electricity Act only extended the
operation of s.
379 (s. 378?) of the Penal Code and
Vishwanath's case(2) was wrongly decided as s. 39 expressly made the dishonest
abstraction of electrical energy an offence punishable under the Code. In Tulsi
Prasad v. The State(3) an additional reason in support of the same view was
given and that was that s. 39 could not create in offence as it did not provide
for any punishment. The case of Public Prosecutor v. Abdul Wahab(4) seems to
have proceeded on the basis that s. 39 created a fiction by which something
which was not a theft within the Indian Penal Code became one under it and so
the offence was really under the Code. It was also stated that the purpose of
the fiction was merely to create an offence but as the punishment for it was
provided only under the Indian Penal Code, the offence really became one under
the latter statute.
With regard to the first reason that s. 39 of
the Act extended the operation of s. 378 of the Code, it seems to us beyond
question that s. 39 did not extend s. 378 in the sense of amending it or in any
way altering the language used in it. Section 378, read by itself even after
the enactment of s. 39, would not include a theft of electricity for electricity
is not considered to be movable property.
The only way in which it can be said that s.
39 extended s.
378 is by stating that it made something
which was not a theft under s. 378, a theft within the meaning of that sec-
tion. It follows that if s. 39 did so, it created the offence itself and s. 378
did not do so. In this view of the matter we do not think it possible to say
that the thing so made a theft and an offence, became one by virtue of s.
Next as to s. 39 not providing for a
punishment, apart from the question whether an offence can be created by a
statutory provision without that provision itself providing for punishment, on
which we express no opinion, we think it clear that S. 39 must be read as
providing for a punishment.
First it is clear to us that the Act
contemplated it as doing so, for ss. 48 and 49 (1) A.I.R. 1956 Bom. 354. (2)
I.L.R. (1937) All. 102.
(3) (1964) 1 Cr. L.J. 472. (4) (1964) L.W.
(Madras) 271. (F.B.) 106 speak of penalties imposed by s. 39 and acts
punishable under it. In Public Prosecutor v. Abdul Wahab(1) it was stated that
the language used in ss. 48 and 49 cannot be regarded as strictly accurate.
Such an interpretation is not permitted for "the words of an Act of
Parliament must be construed so as to give sensible meaning to them." The
words ought to be construed ut res magis valeat quam pereat :
Curtis v. Stovin(2). And we find no
difficulty in taking the view that S. 39 does provide for a punishment. It says
that the dishonest abstraction of energy shall be deemed to be theft within the
meaning of the Indian Penal Code. The section, therefore, makes something which
was not a theft within that Code, a theft within it, for if the abstraction was
a theft within the Code, the section would be unnecessary. It follows from this
that the section also makes that theft punishable in the manner provided in it,
for if the act is deemed to be a theft within the Code it must be so deemed for
all purposes of it, including the purpose of incurring the punishment. In State
v. Maganlal Chunilal Bagawat(3) it was also stated that the offence of
abstraction of energy is by s. 39 expressly made punishable under S. 379. We
find no such express provision in S. 39.
Even if there was such a_provision in the
Act, the liability to punishment would arise not under the Code but really
because of s. 39. It will be impossible to hold that without S. 39 there is any
liability to punishment under the Code for any abstraction of electrical
energy. In Public Prosecutor v. Abdul Wahab(1) it was observed that since s.
39 created a theft within the meaning of the
Indian Penal Code by means of a fiction, it followed that as the fiction could
not be departed from, the offence so fictionally created was one under the
Code. We are unable to appreciate this reasoning. If a provision says that
something which is not an offence within the meaning of another statute is to
be deemed to be such, the offence is, in our view, created by the statute which
raises the fiction and not by the statute within which it is to be deemed by
that fiction to be included. If the other view was correct, it would have to be
held that the offence was one within the last mentioned statute proprio vigore
and this clearly it is not.
At this stage we might point out that in
Abdul Wahab's(1) case it was stated that "It can be accepted that s. 39 of
the Act creates. an offence." It seems to us that if so much is conceded,
it is) impossible to say that s. 50 would not apply to a prosecution in respect
of it for it applies to every prosecution "for any offence against this
(1) (1964) L.W. (Madras) 271. (F.B.) (2)
(1889) 22 Q.B.D. 513, 517.
(3) A.I.R. 1956 Bom. 354.
107 To put it shortly, dishonest abstraction
of electricity men- tioned in S. 39 cannot be an offence under the Code for
under it alone it is not an offence the dishonest abstraction is by s. 39 made
a theft within the meaning of the Code, that is, an offence of the variety
described in the Code as theft. As the offence is created by raising a fiction,
the section which raises the fiction, namely s. 39 of the Act, must be said to
create the offence. Since the abstraction is by s. 39 to be deemed to be an
offence under the Code, the fiction must be followed to the end and the offence
so created would entail the punishment mentioned in the Code for that offence.
The punishment is not under the Code itself for under it abstraction of energy
is not an offence at all. We may now refer to certain general considerations
also leading to the view which we have taken.
First, we find that the heading which governs
ss. 39 to 50 of the Act is "Criminal Offences and Procedure".
Obviously, therefore, the legislature thought that s. 39 created an offence. We
have also said that ss. 48 and 49 indicate that in the legislature's contemplation
s. 39 provided for a punishment. That section must, therefore, also have been
intended to create an offence to which the punishment was to attach. The word
'offence' is not defined in the Act.
Since for the reasons earlier mentioned, in
the legislature's view s. 39 created an offence, it has to be held that was one
of the offences to which s. 50 was intended to apply. Lastly, it seems to us
that the object of S. 50 is to prevent prosecution for offences against the Act
being instituted by anyone who chooses to do so because the offences can be
proved by men possessing special qualifications. That is why it is left only to
the authorities concerned with the offence and the persons aggrieved by it to
initiate the prosecution. There is no dispute that s. 50 would apply to the
offences mentioned in ss. 40 to 47. Now it seems to us that if we are right in
our view about the object of s. 50, in principle it would be impossible to make
any distinction between s. 39 and any of the sections from s. 40 to s. 47. Thus
s. 40 makes it an offence to maliciously cause energy to be wasted. If in
respect of waste of energy S. 50 is to have application, there is no reason why
it should not have been intended to apply to dishonest abstraction of energy
made a theft by s.
39. For all these reasons we think that the
present is a case of an offence against the Act and the prosecution in respect
of that offence would be incompetent unless it was instituted at the instance
of a person named in s. 50.
Learned counsel for the respondent also
sought to contend that the present prosecution was at the instance of a person
108 aggrieved by the theft. We do not think we should allow him at this stage
to go into that question. The appellant has all along been contending that his
prosecution was bad because it was not at the instance of the Government or an
Electrical Inspector or a person aggrieved by the theft. It was clearly for the
respondent if it was minded to go into that question, to establish that the
prosecution had been instituted at the instance of a person aggrieved as it now
seeks to do. It has never been disputed at any earlier stage that the
prosecution had not been at the instance of one of the persons mentioned in s.
50. The onus of proving that fact was clearly on the respondent. It is a
question of fact and we have no material on the record by which we can decide
it. We, therefore, think that this case must be decided on the basis, as it was
in the courts below, that the prosecution would be incompetent under s. 50 if
it was in respect of an offence against the Act. We have found that it was in
respect of such an offence.
The result is that the appeal is allowed and
the conviction of the appellant is set aside.