Gauhati High Court
Sadhan Baidy And Ors. vs State Of Tripura on 19 January, 2007
Equivalent citations: (2007)2GLR710, 2007(1)GLT749
Author: A.H. Saikia
Bench: A.H. Saikia
JUDGMENT A.H. Saikia, J.
1. Heard learned Counsel for the parties including the learned public prosecutor, State of Tripura.
2. The legality and correctness of the judgment dated 5.3.1999 passed by the learned Addl. Sessions Judge, Belonia, South Tripura, in Criminal Appeal No. 4(I)99 upholding and confirming the judgment and order dated 23.12.1998 passed by the learned Sub-Divisional Judicial Magistrate, Belonia in connection with Case No. G.R.63/97 convicting the petitioners under Section 379 I.P.C. and thereby sentencing them to undergo rigorous imprisonment for 6(six) months on the allegation of commission of theft of electricity, an offence governed by the Indian Electricity Act, 1910 (for short, 'the Act'), has been questioned in this revision petition filed on 17.5.1999 prior to coming into force of the Indian Electricity Act, 2003.
3. Assailing the impugned judgments the learned Counsel appearing for the petitioners has forcefully submitted both the courts below, i.e., the trial court as well as the appellate court committed a grave error of law in convicting and sentencing the petitioners under Section 379IPC when the alleged offence was governed by a separate and specific law in nature of the Act.
4. Drawing attention of this Court to Sections 39 and 50 of the Act, it is contended that Section 39 of the Act contains the specific provision for theft of energy and in the said provision itself, the punishment has also been prescribed. That being so Section 39 itself stands as an independent provision of substantive law for punishment of any act of theft of energy under the Act. Moreso, Section 50 of the Act provides that the prosecution case against any person accused for any offence under the theft can only be instituted at the instance of the Government or a State Electricity Board or an Electrical Inspector or of a person aggrieved by the same. However, according to the learned Counsel, in the instant case no prosecution case was instituted against the petitioners under Section 50 of the Act for the alleged commission of theft of energy and the prosecution was initiated against the petitioners giving go-bye to the provision of Sections 39 and 50 of the Act and that by falling back upon in the Indian Penal Code ('the IPC) which had no nexus with the nature of office committed by the petitioners.
5. For the sake of convenience, it would be relevant and necessary to quote Section 39 and Section 50 of the Act which read as under:
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 authorized by the licenses 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.
50. Institutions of prosecutions. - No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order hereunder, except at the instance of the Government [or a State Electricity Board] or an [Electrical Inspector], or of a person aggrieved by the same.
6. In support of his submission, strong reliance has been placed by the learned Counsel on a decision of the Apex Court Avtar Singh v. State of Punjab wherein it was held in paragraphs 8 and 9 that dishonest abstraction of electricity mentioned in Section 39 could not be an offence under the IPC as abstraction of electricity was only an offence under the Act and any prosecution in respect of that offence would be incompetent unless it was instituted at the instance of a person named in Section 50 of the Act.
7. In support of the impugned conviction and sentence, on the other hand, the learned Public Prosecutor has strenuously argued that no illegality or jurisdictional error has been committed by the courts below in convicting the petitioners under Section 379 IPC though they were found to have committed theft of electricity, having been governed by Section 39 of the Act. His clear stands is that though Section 39 of the Act has prescribed for punishment of commission of such offence of theft, there is no bar for convicting the petitioners under Section 379 IPC. It is also contended that the prosecution case was initiated absolutely in compliance of Section 50 of the Act as the same is evident from the fact that the FIR was lodged by the Sub-Divisional Officer, Electrical Belonia Division being an authorised officer under Section 50 of the Act.
8. Be it noted that as per prosecution case, on 14.3.1997 FIR was lodged with Belonia Police Station by the Sub-Divisional Officer, Electrical, Belonia alleging that when he accompanied by the police and electrical staff went to Abhaynagar area of Hrishamukh for detection of Hookline by which electricity power were stolen away continuously, he detected the Hook lines in the house and shops of the accused persons. Those were disconnected from the main line and seized. On the basis of the above F.I.R., Belonia P.S. Case No. 24/97 was registered and investigation started. Finally charge sheet was submitted against those petitioners under Section 39 of the Act punishable under Section 379 IPC.
9. Having given my anxious consideration to the rival submissions canvassed on behalf of the parties and also on close perusal of the impugned judgment as well as facts situation of this case in its totality, it is found that surprisingly when it was an admitted case of theft of electricity, being governed by Section 39 of the Act containing a specific provision for punishment of theft of electricity, no explanation was put on record as to why petitioners were tried for punishment under Section 379 IPC. However, only observation recorded in the impugned judgment was that prosecution established its case beyond shadow of reasonable doubt against all those petitioners under Section 39 of the Act punishable under Section 379 IPC. It is amazing to note that when punishment has already been prescribed specifically under Section 39 of the Act, what prompted the learned Courts below to punish the petitioners under Section 379 IPC. The Supreme Court in Avtar Singh's case (supra) emphatically ruled that the punishment in case of theft of energy should be adhered to Section 39 of the Act and not under Section 379 IPC.
10. It would also be necessary to bear in mind the provision of Sections 378 and 379 IPC which may be noticed as under:
378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
379. Punishment for theft. - Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
11. A common reading of both the provisions above noted would abundantly go to show that the property mentioned in Section 378 is aimed only at movable property which is taken out of the possession of any person dishonestly without that person's consent. Such particular action is said to commit theft. Now question herein poses is as to whether electricity is a movable property. Upon careful reading of the provision of Section 39 of the Act along with Section 378, this Court cannot pursue itself to accept the electricity as a moveable property to come within the purview of Section 379 of the IPC and for this reason alone the legislature with its all wisdom has enacted and incorporated an independent and separate provision as Section 39 of the Act to deal with the theft of energy, as in the case in hand, prescribing punishment therein when no such punishment has been prescribed for such theft of electricity under Sections 378 and 379 IPC. Pertinent to mention that both Section 39 of the Act and Section 379 I.P.C. provide imprisonment for a term which may extend to three years or with five or with both. However, the fine amount in Section 39 of the Act is fixed with minimum one thousand rupees. This clearly depicts that both Sections have their independent application as regards to nature of offence committed.
12. It would be proper, and relevant to note the observations made paragraphs 8 and 9 of the Avtar Singh's case (supra) which is quoted below:
(8) To put it shortly, dishonest abstraction of electricity mentioned in Section 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by Section 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 Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 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.
(9) We may now refer certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Sections 39 to 50 of the Act is "Criminal Offences and Procedure". Obviously, therefore, the legislature thought that Section 39 created an offence. We have also said that Sections 48 and 49 indicate that in the legislature's contemplation Section 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 Section 39 created an offence, it has to be held that was one of the offences to which Section 50 was intended to apply. Lastly, it seems to us that the object of Section 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 Section 50 would apply to the offences mentioned in Sections 40 to 47. Now it seems to us that if we are right in our view about the object of Section 50, in principle it would be impossible to make any distinction between Section 39 and any of the section from Section 40 to 47. Thus Section 40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy Section 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 Section 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 Section 50.
13. Having regard to the above cited case and given facts situation a well as upon hearing the learned Counsel for the parties, this Court is of the view that conviction and sentence of the petitioners under Section 379 IPC is not tenable due to the existence and operation of Section 39 of the Act. More so, the prosecution against the petitioners, as it transpires, was not instituted apparently under Section 50 of the Act which could only be launched against the petitioners.
14. In view of what has been discussed and observed above, this Court is inclined to set aside and quash the conviction and sentence of the petitioners so inflicted by the courts below. It is ordered accordingly.
15. Revision petition stands allowed. Bail bonds of the petitioners stand discharged. Send down the LCR forthwith.