Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 738 (GUJ)

State of Gujarat v. Shabirbhai Ahmedbhai Shaikh

2018-06-12

G.R.UDHWANI

body2018
JUDGMENT : G.R. Udhwani, J. 1. Judgment and order dated 10.05.2007 rendered in Criminal Appeal No.40 of 2006 by the learned Presiding Officer, 2nd Fast Track Court, Junagadh recording Acquittal for the original accused, after reversing the judgment and order dated 05.08.2006 rendered by the learned Chief Judicial Magistrate, Junagadh, in Criminal Case No.5686 of 1997, recording conviction for the said accused for unauthorized use of electrical connection of the Gujarat State Electricity Board, is sought to be assailed in this Appeal under Section 378 of the Code of Criminal Procedure (for short Cr.P.C.). 2. It is unnecessary to delve upon the facts of the case in detail inasmuch as this acquittal Appeal can be decided by addressing one of the issues pertaining to the competence of the Deputy Engineer in lodging the prosecution. One of the contentions which persuaded the Appellate Court to record the acquittal for the said accused was that in absence of the lodgment of the prosecution by the entity contemplated under Section 50 of the Indian Electricity Act, 1910 (for short “the Act”); which was the Act applicable at the relevant point of time i.e. in the year 1997 when the complaint was lodged, the prosecution was not maintainable. The bare perusal of Section 50 of the Act relied upon by the learned counsel for the opponents – original accused indicate that the prosecution would be ill-founded in absence of its lodgment by or at the instance of one of the entities specified therein being : (i) Government, (ii) State Electricity Board, (iii) Electrical Inspector, (iv) a person aggrieved by the same. 3. The learned APP, however, contended that the complainant i.e. Deputy Engineer of the Electricity Board is the officer superior to the Electrical Inspector and a person not below the rank of Electrical Inspector is competent to file or lodge the prosecution under Section 50 of the Act. This Court is not impressed with the said arguments inasmuch as acceptance of the arguments would amount to re-writing the provision by pre-fixing the words “not below the rank of” to “Electrical Inspector” appearing in Section 50 of the Act. It is settled law that unless the language of the provision is ambiguous, it would be advisable to adhere to its plain meaning. It is settled law that unless the language of the provision is ambiguous, it would be advisable to adhere to its plain meaning. 3.1 The learned APP would contend that the expression “person aggrieved” appearing in Section 50 of the Act would comprehend the Officers of the State Electricity Board and therefore, the Deputy Engineer being one of the officers of the Electricity Board was competent to lodge the prosecution. This argument ignores the cardinal principal of interpretation as discussed above. It is not possible to ignore the legislative intent of naming specific designations as competent entities for launching the prosecution for the offence under the Act. If specified designations were intended to be the same as “person aggrieved” there was no necessity to specify them in the provision individually. Therefore, “person aggrieved” cannot be the same as the other specified entities. Normally, the offence under the Act would be against Government or State Electricity Board. There may, however, be instances where a person other than the Government or Electricity Board or Electrical Inspector may be aggrieved by the offence under the Act. There may be instance where the theft is committed from the electricity connection of consumer of the Board. In such a case, such consumer would be a person aggrieved and lodgment of the prosecution by him would be competent under Section 50 of the Act. One of the instances as regards “person aggrieved” can be traced to Ram Chandra Prasad Sharma and Others Vs. State of Bihar and another [ AIR 1967 SC 349 ], wherein, after interpreting Section 50 of the Act it was held that, a person authorized by competent entity under Section 50, by power of attorney, to lodge the prosecution, is person aggrieved within the meaning of Section 50 of the Act. In said case, prosecution was lodged at the instance of one Mr. Bhattacharya – the mains Superintendent who was authorized by the Electricity Company, by power of attorney, to lodge the prosecution. The view expressed in Ram Chandra [ AIR 1967 SC 349 ] came to be affirmed by approval in State of Karnataka Vs. Adimurthy alias B. Moorthy [AIR 1983 Supreme Court 822]. 4. Bhattacharya – the mains Superintendent who was authorized by the Electricity Company, by power of attorney, to lodge the prosecution. The view expressed in Ram Chandra [ AIR 1967 SC 349 ] came to be affirmed by approval in State of Karnataka Vs. Adimurthy alias B. Moorthy [AIR 1983 Supreme Court 822]. 4. In the instant case, prosecution is lodged at the instance of the Deputy Engineer who is not the authority or entity contemplated in Section 50 of the Act nor was he authorized by such entity and, therefore, was incompetent to lodge the prosecution. The Appellate Court was thus justified in ruling against his competence. 5. This Court finds no reason to interfere in the order of acquittal and the Appeal must fail only on the above ground. Accordingly, it is dismissed. Appeal Dismissed.