Judgment G.N.Prasad, J. 1. This is a reference made by the Sessions Judge of Patna recommending that the conviction of the two accused persons under Sec.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. 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 Sec.12 of the Indian Electricity Act (Act 9 of 1910). The contention of learned counsel is that the provisions of Sec.12 apply only to the stage when the electric supply lines are laid in any area for the first time. In support of this contention learned counsel has relied upon Sec.12 of the Indian Electricity Act (Act 9 of 1910). The contention of learned counsel is that the provisions of Sec.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 Sec.18(3) of the Indian Electricity Act, which is in the following terms: "Where any tree standing or lying near an overhead line, or where any structure or other object which has been placed or has fallen near an overhead line subsequently to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with the conveyance or transmission of energy or the accessibility of any works, a Magistrate of the first class, or in a Presidency town, the Commissioner of Police may on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he thinks fit." It is quite clear from the above provision of law that in case it is necessary to cut down any tree or branch of a tree standing or lying near an overhead line, or to remove any structure or object which may have been placed or fallen near an overhead line, subsequent to the laying of the supply line, in order to prevent interruption with the conveyance or transmission of electrical energy, then it is the duty of the supplier or the licensee to make an application to a magistrate of the first I class for causing the tree, structure or object to be removed or suitably dealt with otherwise. It seems to me that unless there is any emergency, it is the duty of the licensee or the suppliers to proceed in accordance with Sec.18(3) of the Act, and only in cases of emergency it can proceed to remove the obstruction or to cut the tree or its branch, and in that case also to act bone fide by making a suitable application to the magistrate of the first class as soon as possible after cutting the tree or its branch or removing the obstruction for its disposal. But, in case where such an emergency does not exist there can be no justification for the licensee or its men to ignore the provisions of Sec.18(3) of the Act. 4 In the instant case, there was no doubt a violation of the provisions of Sec.18(3) of the Indian Electricity Act, 1910 ; but I am unable to hold that there was want of good faith on the part of the two accused persons who had proceeded to cut the branch of the tree under the orders of their superior officers. 5. The result, therefore, is that the reference is accepted and the conviction and the sentence of the two accused persons are set aside. The fine, if paid, will be refunded to them. Anant Singh, J. 6. I agree. I may only add that on the language of Sec.18(3) of the Act, the Department of Electricity have not been clothed with an unrestricted power but they have to exercise their power within some control, namely, under the orders of a magistrate of a first class and the legislature has designedly put this restraint to check any abuse of their power. I can hardly conceive of an emergency leaving no time to obtain the necessary orders from the magistrate before removing the obstruction. The obstruction by over growing of trees of branches or construction of any structure cannot take place all at once unless some obstruction was to be caused by accidental fall of some object on the line. But, once the line has been dislocated by an accidental fall of any object, it will necessarily take some time to restore the line and in the meantime the order of the Magistrate can well be procured in advance before the removal of the obstruction. But, once the line has been dislocated by an accidental fall of any object, it will necessarily take some time to restore the line and in the meantime the order of the Magistrate can well be procured in advance before the removal of the obstruction. If the object causing the obstruction belongs to some one else and has any value, the Department have not been given the right of removing it without the prior order of the magistrate. If at all there be an extreme urgency (since all contingencies cannot be properly foreseen) leaving no time to secure the necessary order from the magistrate, the Department could act on its own for the time being by removing the obstruction, but even in such a case they must only remove the object causing the obstruction to a nearby place, and, in the mean time, secure the magistrates order for the final disposal of such an object, if it is the property of some one else, having some value. The Department in either case must have to act within the four corners of the provisions of the law.