Avtar Singh vs State Of Punjab

Supreme Court of India (Full Bench (FB)- Three Judge)

Appeal (Crl.), 42 of 1963, Judgment Date: Aug 24, 1964

HEADNOTE:

The appellant was prosecuted and convicted for theft of electrical energy under s. 39 of the Indian Electricity Act (9 of 1910). He contended that, as his prosecution was for an offence against the Act it was incompetent, because, it had not been instituted at the instance of any of the persons mentioned in s. 50 of the Act.

HELD :

The conviction of the appellant must be set aside. The dishonest abstraction of electricity mentioned in s. 39 of the Act cannot be an offence under the Indian Penal Code for under it )lone it is not an offence; the dishonest abstraction is by that section 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 must be said to create the offence. Since the abstraction is 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. Further, the object of s. 50 of the Act is to prevent prosecution for offences against the Act being instituted by any one who chooses to do so because, the offences can only be proved by men possessing special qualifications, and there is no reason why it should not have been intended to apply to dishonest abstraction of energy made an offence of theft by s. 39. [107A-C, E-G]. Emperor v. Vishwanath, I.L.R. [1937] All. 102, Dhoolchand v. State [1956] I.L.R. 6 Raj. 856 and In re. P. N. Venkatarama Naicker, A.I.R. 1962 Mad. 497, approved. State v, Maganlal Chunilal Bogawat, A.I.R. 1956 Bom. 354, Tulsi Prasad v. The State, (1964) 1 Cr. L.J. 472 and Public Prosecutor v. Abdul Wahab, (1964) L.W. 271 (F.B.), overruled.