Shiv Dayal vs The State

H.R. Khanna, J.—This judgment will dispose of thirteen Criminal Revisions. Nos. 569 to 581 of 1962. In all these revisions the learned Additional Sessions Judge, Karnal, has recommended that the order of Magistrate, I Class, Karnal, be set aside and it be directed that Jaggu Ram is not approver for the purpose of these cases and that the procee-ings before the Magistrate are not inquiry proceedings and that he should proceed with the trial of these cases in accordance with law.

The facts giving rise to these cases are that on a complaint made by the Superintending Engineer of Punjab Electricity Board, Karnal, the police Karnal prosecuted the Petitioners in these cases along with Om Parkash and Ram Singh for offences under sections 380 and 120B, Indian Penal Code, and 39, 44 and 47 of the Indian Electricity Act, 1910. The Petitioners in some of the cases run oil expellers with power and in the remaining cases run flour mills with power. They had obtained an industrial connection for running the said expellers and mills, and meters for calculating the units of electricity consumed had been installed in the said premises. It is stated that with the help of and in conspiracy with Ram Singh, Om Parkash and Jaggu Ram, the Petitioners tampered with the said meters and thus caused wrongful loss to the electricity department. Jaggu Ram was tendered pardon and he was cited as an approver in the list of witnesses. At the commencement of the proceedings an objection was raised on behalf of the Petitioners before the learned Magistrate that Jaggu Ram could not be examined as an approver because the offence even on the showing of the prosecution was of theft punishable u/s 379, Indian Penal Code. The learned Magistrate overruled the objection and held that the offence alleged to have, been committed fell u/s 380, Indian Penal Code, and that Jaggu Ram could be examined as an approver.

On revision the learned Additional Sessions Judge held that the offence, if any, fell u/s 379, Indian Penal Code, and as such Jaggu Ram could not be tendered pardon and cited as an approver u/s 337 of the Code of Criminal Procedure.

I have heard Sarvshri M.L. Jain and Rajinder Sachar on behalf of the Petitioners and Miss Surjit Kaur on behalf of the State, and they have all supported the recommendations of the learned Additional Sessions Judge. Section 39 of the Electricity Act reads as under:

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.

A perusal of the above provision of law goes to show that any person who dishonestly abstracts, consumes or uses electricity shall be treated in the same way as if he had committed the offence of theft. It is not essential to bring a case u/s 39 of the Indian Electricity Act, 1910, to prove that all the ingredients of theft as defined in Section 378, Indian Penal Code, are present because the words used in Section 39 are "shall be deemed to have committed theft". The section makes dishonest abstraction, consumption or use of electric power punishable and provides that the aforesaid acts shall be deemed to constitute the offence of theft as defined in the Indian Penal Code. The section being a penal provision of law has to be construed strictly and it is not permissible to extend the operation of the section and infer that if there is a dishonest abstraction, consumption or use of electric power in a building, the offence would be more serious type of theft which is punishable u/s 380 of the Penal Code. What the section contemplates is that certain acts would constitute the offence of theft simpliciter and by a process of extension the courts cannot spell out of the section a more serious offence which the Legislature has not provided therein. I may in this connection refer to two cases decided by Calcutta and Bombay High Courts. In Rash Behari Shaw (Handa) and Others Vs. Emperor, , the accused were alleged to be parties to a criminal conspiracy to commit theft by dishonest consumption or user of electrical energy and to have in consequence of that conspiracy committed theft of electricity in certain cinemas and other places. The trial Court in that case convicted the accused u/s 39 of the Electricity Act read with Section 380, Penal Code. The High Court in appeal altered the conviction to that u/s 379, Indian Penal Code. In State Vs. Maganlal Chunilal Bogawat, the accused were alleged to have abstracted electric energy in their shops. It was held that the offence of the accused fell u/s 379 of the Indian Penal Code. Following these authorities I am of the view that even if the allegations of the prosecution were accepted, the Petitioners can be said to have entered into a conspiracy for the commission of the offence u/s 379, Indian Penal Code, and to have committed an offence under that section and not u/s 380, Indian Penal Code. The punishment for the offence u/s 379, Indian Penal Code, does not extend beyond three years and fine. The punishment provided for the offences under Sections 44 and 47 of the Indian Electricity Act, 1910, consists of fine only. According to Section 337 of the Code of Criminal Procedure pardon can be granted to a person and he can be turned an approver only in the case of offences triable exclusively by the High Court or Court of Sessions or offences punishable with imprisonment which may extend to seven years or some specified offences with which we are not concerned in the present cases. As the Petitioners are alleged to have committed offences the punishment of which does not extend beyond three years and which are not triable exclusively by the High Court or Court of Session, the question of tendering pardon to Jaggu Ram and turning him an approver did not arise.

I, accordingly, accept the recommendations of the learned Additional Sessions Judge and direct Jaggu Ram be not treated an approver for the purpose of these cases and that the learned Magistrate should proceed with the trial of these cases in accordance with law.