Delhi High Court
K.L. Sharma vs State And Ors. on 25 January, 1996
Equivalent citations: 1996(3)CRIMES434, 61(1996)DLT724
JUDGMENT Usha Mehra, J.
(1) By this petition the petitioner has sought quashing of the proceedings pending in the Court of Shri Chandra Bose, Metropolitan Magistrate, Karkardooma, Delhi vide Fir No-92/91 under Sections 39/44 of Indian Electricity Act, 1910 (in short the Act) read with Section 379 of Indian Penal Code . in police Station Nand Nagri.
(2) The main grievance of the petitioner is that the petition under Section 39 of the Act does not empower the respondents to prosecute the petitioner under Section 379 Indian Penal Code . Moreover, under Section 167 of Cr.P.C. the charge sheet ought to have been filed within 60 or 90 days as the case may be. Whereas the challan has in fact been filed beyond the statutory period by the prosecution, therefore, the Trial Court ought not to have taken cognizance on this case.
(3) To stress his arguments, Mr. Saif has placed reliance on the decision of Supreme Court in the case of Avtar Singh v. State of Punjab, wherein the Apex Court observed that where the accused has been prosecuted and convicted for theft of electrical energy under Section 39 of the Act. Then such an offence has to be instituted at the instance of the persons mentioned in Section 50 of the Act. Therefore the conviction of the appellant must be set aside. The Supreme Court further observed that dishonest abstraction of electricity mentioned in Section 39 of the Act cannot be an offence under the Indian Penal Code for under it alone it is not an offence, the dishonest abstraction is by that section made a theft within the meaning of the Code, i.e. an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the Section which raises fiction, namely Section 39 must be said to create the offence. Relying on these observations, Mr. Saif contended that no offence under Section 379 of the Code has been made out, therefore, the petitioner could not be charged under that provision.
(4) Refuting these arguments Mr. Ajay Jha, appearing for the Desu contended that provisions of Section 39 of the Act have been amended by the Amendment Act (31 of 1986). The Supreme Court was concerned with the pre-amended Section 39 of the Act of 1910. Section 39 of the Act of 1910 did not provide any punishment. In order to appreciate the contention, the provisions of Section 39 as it stood under the Act (9 of 1910) as well as in the Act (31 of 1986) are reproduced as under : Section 39 of the Act (9 of 1910) : 39.Theft of Energy: Whoever dishonestly abstracts, consumes or uses any energy shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than one thousand rupees, or with both; and if it is proved that any artificial mean or means not authorised by the licencee exist for the abstraction, consumption or use of energy by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of energy has been dishonestly caused by such consumer.
Section 39 of the Act (31 of 1986) : 39.Theft of energy: 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.
(5) Bare reading of the section as amended now and as it stood prior to the amendment, it is clear that now the punishment is envisaged in the Act itself. Though admittedly, dishonest abstraction of electricity mentioned in this Section cannot: be an offence under the Indian Penal Code but on account of the legal fiction created and as discussed by the Supreme Court in the case of Avtar Singh (supra), the only logical conclusion which can be arrived at is that although such an abstraction, consumption or user of energy may not be a theft under Section 378 of I.P.C. yet it shall be by virtue of this section considered to be a theft. The very fact that there are instances of such abstraction, consumption or use of energy by the consumer, the presumption can be drawn that it was done dishonestly and unauthorisedly by the consumer.
(6) The word "dishonestly" has been described in the Indian Penal Code to mean anything done with the intention of causing wrongful gain to one person or wrongful loss to another and it is in this sense that the word "dishonestly" has been used in Section 39 of the Act. Therefore, it is wrong on the part of the Counsel for the petitioner to contend that the Court ought not to have taken cognizance either under Section 39 of the Act or under Section 379 of the Code.
(7) So far as the contention of Counsel for the petitioner that there was delay in filing the charge sheet, to my mind, this argument is also without force. The provisions of Section 167 are applicable to the persons who are under arrest and detention. The Constitutional mandate as given in Article 21 of the Constitution of India stipulates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is keeping this mandate in view and to protect the liberty of the citizen involved, the Legislature brought on the Statute Book the provisions of Section 167 of Cr.P.C. In view of this provision it has become necessary for the Investigating Officer to act with expedition. The period as laid down has strictly to be followed within which the investigation should be over and charge sheet be filed. Strict compliance is expected which is a mandatory provision of law. It is not possible to take liberal or generous view of the lapses on the part of Investigating Officer because liberty is a precious facet of life and a person should not be detained in jail longer than is necessary. This principle has been given sufficient validity by the provisions contained in Section 167 Cr.P.C. Provisions of Section 167 Cr.P.C. are to be read as supplementary to those contained in Section 57 of the Code which is reproduced as under: 57.No Police Officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 57 clearly stipulates that the Police Officer shall not detain a person arrested without warrant for a longer period. Therefore, Section 57 and Section 167 pre- suppose and postulate that the person is in custody, hence the charge sheet relating to him should be filed within the prescribed period. But that is not the position in the case in hand. The petitioner herein was not in custody when charge sheet was filed, therefore, provisions of Section 167 Cr.P.C. are not attracted to his case. Counsel for the petitioner then contended that his case is covered under Subsection 5 of Section 167 Cr.P.C. I am afraid it is also not so. The provisions of Subsection 5 apply to a case triable by a Magistrate as a summons case. That is not so in this case. For the reasons stated above, I find no infirmity in the impugned order nor any merits in the petition. Dismissed.