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1986 DIGILAW 125 (KER)

KRISHNAN v. STATE

1986-03-26

SREEDHARAN

body1986
Judgment :- 1. P.W. 3 in C C No 1281/80 on the file of the Judicial II Class Magistrate's Court, Punalur is the petitioner in Crl. R.P.No. 357/82. It is directed against the acquittal of the accused. Accused was charged with offence punishable under S.379 of the Indian Penal Code read with S.39 and 44 of the Indian Electricity Act, Act IX of 1910. 2. Crl. M.C. No. 402/83 is also filed by P.W. 3 for expunging the adverse remarks made by the learned Magistrate against him is the judgment. 3. The allegations made against the accused in the case can be stated, in brief, as follows: Accused is residing in house bearing municipal No. XVII/17 of the Punalur Municipality. He is electrical consumer No. 3106 of the Punalur Electrical Section. With the intention of committing theft of electrical energy the accused applied artificial means at the service post, which gives connection to his house and also to the main switch installed in his house. By the said arrangement the electrical metre was made unworkable and thereby caused a loss to the tune of Rs. 643.06 to the Electricity Board for a period of 6 months prior to 6.9.1980. Hence the offence. 4. In order to prove the guilt of the accused the prosecution examined P.Ws 1 to 7, proved Exts. P1 to P6 and got marked M.Os.1 and 2. On the side of the accused D.Ws 1 to 8 were examined and Exts. D1 to D5 were marked. After considering the above evidence, the learned Magistrate came to the conclusion that the prosecution has miserably failed in establishing its case against the accused. Accordingly he was acquitted. 5. The main questions that arise for consideration are whether: i) The prosecution launched by the police on a complaint filed by the Asst. Engineer of the Kerala State Electricity Board is maintainable in view of the provisions contained in S.50 of the Indian Electricity Act. ii) Whether the Judicial II Class Magistrate had the jurisdiction to try the case and iii) Whether the observations made by the learned Magistrate against P.W. 3 is liable to be expunged. Engineer of the Kerala State Electricity Board is maintainable in view of the provisions contained in S.50 of the Indian Electricity Act. ii) Whether the Judicial II Class Magistrate had the jurisdiction to try the case and iii) Whether the observations made by the learned Magistrate against P.W. 3 is liable to be expunged. S.50 of the Indian Electricity Act reads as follows: "No prosecution shall be instituted, against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government, or an Electrical Inspector or of a person aggrieved by the same." According to the learned counsel appearing for the respondents theft of electrical energy is an offence against the Electricity Act. So under S.50 prosecution can be launched only by the Government or the Electrical Inspector or by a person aggrieved by the same. In the instant case, the prosecution has been launched by the police by filing a report under S.173 of the Code of Criminal Procedure. This it is argued is violative of the provisions contained in S.50. 6. What S.50 of the Act states is that no prosecution shall be instituted except at the instance of the Government or an Electrical Inspector or of a person aggrieved by the same. The said provision does not state that no prosecution shall be instituted except by the Government or an Electrical Inspector or by a person aggrieved. In other words, the prosecution need not be by the Government or by the Electrical Inspector or by a person aggrieved. The prosecution need only be at the instance of the Government or an Electrical Inspector or a person aggrieved. The phrase "at the instance of" merely means "at the solicitation of or at the request of". Therefore the legislative intent is only that a prosecution should not be instituted by some busy body who had nothing to do with the matter. The prosecution should be instituted at the instance of anyone of the three bodies contemplated by the Section. 7. In the case of theft of Electrical energy the person aggrieved can be the Kerala State Electricity Board. The Board is a body corporate and must act only through its officers. In the instant case the Asst. Engineer lodged the complaint before the police, when the officers of the Board discovered the theft of electrical energy by the accused. 7. In the case of theft of Electrical energy the person aggrieved can be the Kerala State Electricity Board. The Board is a body corporate and must act only through its officers. In the instant case the Asst. Engineer lodged the complaint before the police, when the officers of the Board discovered the theft of electrical energy by the accused. The Asst. Engineer wanted the police to investigate and then to charge sheet the accused. It means that the officer intended that a prosecution should follow on the basis of the result of the investigation. 8. The Kerala State Electricity Board must be taken to be a person aggrieved by the theft of electrical energy. The Board can act only through its officers. The officers who are duly authorised by the Board in this regard can lodge the complaint before the police and the police charge sheeted the accused after due investigation. The Kerala State Electricity Board has promulgated regulations in exercise of the powers conferred by S.79(k) of the Electricity (Supply) Act for the conduct of legal affairs. The said regulation is known as Kerala State Electricity Board (Conduct of Legal Affairs) Regulations. Regulation.8(b) deals with institution of criminal cases. It contains 4 clauses and I read them. 1) In all cases of offence under the Indian Electricity Act 1910 or the Indian Electricity R.1956, except for offence of theft of energy under S.39 of Indian Electricity Act, Criminal complaints may be filed on behalf of the Board by Chief Engineers, Superintending Engineers, Executive Engineers or Assistant Engineers in the Electrical side. Before filing the complaint, the concerned officer of the Board should prepare a site mahazar with all relevant details to prove the offence in Court. The mahazar (Panchanama) shall invariably be attested by two reliable witnesses. 2) As soon as any offence under S.39 of Electricity Act is detected the local responsible officer concerned not below the rank of a Junior Engineer or I Grade Overseer when Junior Engineer is not in station should inform the Police and cause to enquire and prepare a site mahazar by them as early as possible. 2) As soon as any offence under S.39 of Electricity Act is detected the local responsible officer concerned not below the rank of a Junior Engineer or I Grade Overseer when Junior Engineer is not in station should inform the Police and cause to enquire and prepare a site mahazar by them as early as possible. If the police do not charge the case the Assistant Engineer or any other officer mentioned in clause I above or an Electrical Inspector to Government in the capacity as such should file a private complaint in the competent Court representing the Board which is the aggrieved party. 3) The Executive Engineers and Assistant Engineers on the electrical side are authorised as contemplated in S. SO of the Indian Electricity Act 1910 to file such complaints or and initiate action for offences under the Act representing the Board as aggrieved party. 4) Criminal complaints shall be filed in cases where there is a prima facie case for institution of such case. The officer may as soon as after filing the suit intimate the Board the details of the case and of filing the complaint. He may also inform the Secretary, the decision of the case as soon as it is disposed of." As per these regulations the officers not below the rank of Junior Engineer or Grade I Overseer when Junior Engineer is not in station can inform the police and cause to have an investigation. 9. In Ram Chandra v. State of Bihar (A.I.R.1967 SC. 349) the prosecution commenced with a charge-sheet submitted by the police to the Magistrate. The offences were investigated into by the police after the first information report was launched by an officer of the electricity company. It was contended that the information given by the officer could not entitle the police to submit the charge and that the submission of charge-sheet by the police is not the same thing as institution of prosecution at the instance of the State. The Officer who lodged the complaint before the police was not himself a person aggrieved. Their Lordships of the Supreme Court held that the company had empowered the officer to act on its behalf in all legal proceedings, that it was in pursuance of that authority that the officer lodged the first information report and therefore the law was set in motion by the "person aggrieved". Their Lordships of the Supreme Court held that the company had empowered the officer to act on its behalf in all legal proceedings, that it was in pursuance of that authority that the officer lodged the first information report and therefore the law was set in motion by the "person aggrieved". In this view the objection based on S.50 of the Act was found to be untenable. 10. In State of Karnataka v. Adimurthy (A.I.R.1983 SC. 822) Their Lordships quoted with approval the following passage from the decision in Vishwanath v. Emperor (A.I.R.1936 Allahabad 742). "If it had been the intention of the legislature that no case should be instituted in Court except by the Electric Company itself or the other persons mentioned in S.50 of the Act, the Legislature would, we think have used the ordinary phrase "on the complaint of" and the section would have been on the lines that no Magistrate should take cognizance of any offence referred to in S.50 of the Act, except upon the complaint of certain persons. The phrase "at the instance of" means merely "at the solicitation of or at the request of". In that decision Their Lordships went on to observe that the Electricity Board being an artificial person can depend on its officers and servants to carry out its powers, functions and duties. The notification issued by the Karnataka Electricity Board was taken as a general order issued by the Board in terms of S.50 of the Act authorising the various officers mentioned therein to initiate prosecutions or to make complaints to the police for instituting prosecutions for offences under any of the Sections of the Electricity Act. Their Lordships further stated: "The Electricity Board being a public authority, it was sufficient for the prosecution to have placed on record a copy of the Manual containing the relevant notification. That was sufficient proof of the authorization requisite under S.50of the Indian Electricity Act, 1910." 11. From the above discussion it can be seen that where an officer of the Board acting for and on behalf of the Board lodges a complaint with the police in respect of unlawful extractions of electrical energy and the police in turn file a charge sheet the prosecution must be regarded as instituted at the instance of the Board. This will be sufficient compliance with the requirements of S.50 of the Indian Electricity Act. This will be sufficient compliance with the requirements of S.50 of the Indian Electricity Act. Viewed in the above manner the investigation is pursuance of the complaint filed by the Assistant Engineer of the Kerala State Electricity Board and the filing of the charge sheet by the police should be taken as a prosecution at the instance of the person aggrieved by the theft of the electrical energy. First point is found accordingly. 12. S.39 of the Indian Electricity Act reads as follows: "Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code; and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction." In the absence of the above provision the illegal extraction of electrical energy would not have been an offence under S.379 of the Indian Penal Code. The question whether the said offence is an offence under the Penal Code or not was considered by Their Lordships of the Supreme Court in Avtar Singh v. State of Punjab (A.I.R.1965 SC. 666-1965 (1) SCR 103). Their Lordships observed: "To put it shortly, dishonest abstraction of electricity mentioned 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." Therefore the offence for which the accused in this case was tried is one created by the Indian Electricity Act. Punishment for that offence is three years or fine or both. An offence under the Indian Electricity Act punishable with imprisonment for three years can only be tried by a Magistrate of the I Class. Here the offence was tried by Judicial Magistrate of the II Class. Punishment for that offence is three years or fine or both. An offence under the Indian Electricity Act punishable with imprisonment for three years can only be tried by a Magistrate of the I Class. Here the offence was tried by Judicial Magistrate of the II Class. The said court had no jurisdiction to try the offence. 13. On going through the evidence in this case it is established beyond any shadow of doubt that the prosecution could not prove the guilt of the accused. The prosecution had not produced all the materials which according to them were used by the accused for illegal extraction of electrical energy before court. They did not cause the metre installed in the accused's house examined to find out the fault in it. The report given by the Regional Electrical Inspector which is marked in this case as Ext. D2 will falsify the allegations of dishonest extraction of electrical energy by the accused. In these circumstances, I do not consider it necessary to have the matter remanded to the court of competent jurisdiction to try the same. 14. P. W.3 has moved Crl. M.C. 402/83 for expunging the remarks made by the learned Magistrate in the impugned judgment. The circumstances under which the remarks in a judgment can be expugned was considered by the Supreme Court in the decision reported in The State of Assam v. Rana Muhammed and others (A.I.R.1967 SC. 903). Their Lordships observed: "The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another judge in Mr. Justice Dutta's place would not have made those comments is not the right criterion. The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised in this case." In the instant case the observations were made by a court which was not competent to try the offence. The judgment cannot stand. It is set aside. So it goes without saying that the remarks contained therein will have no further effect. Crl. R. P. and Crl. M. C. are disposed of in the above terms.