KEDAR NATH GOENKA Vs. STATE OF BIHAR
LAWS(PAT)-1979-7-12
HIGH COURT OF PATNA
Decided on July 05,1979

KEDAR NATH GOENKA Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

K.C.JAIN V. MAHESHWAR SING [REFERRED TO]
R.N.DUTTA V. THE STATE OF BIHAR [REFERRED TO]
SHARSDA PRASAD SINHA VS. STATE OF BIHAR [REFERRED TO]
PUCHALAPALLI RAMACHANDRAREDDI VS. STATE [REFERRED TO]
BHAGWAN SAHAI VS. DIVISIONAL FOREST OFFICER, HAZARIBAGH [REFERRED TO]


JUDGEMENT

M.P.Singh, J. - (1.)This is an application under section 482 of the Code of Criminal Procedure. 1973 for quashing cognizance of the offences under section 39/44 the Indian Electricity Act, 1910 read with section 379, Penal Code taken on 5 April, 1977 by the Special Judicial Magistrate, Patna against the petitioner Kedar Nath Goenka of Chowk Bazar, Monghyr on the basis of a complaint dated 30 March, 1977 made by Chitranjan Prasad, Assistant Electrical Engineer, Monghyr. The date and time of occurrence as alleged in the complaint is 30 March, 1977,1-30 p.m. The place of occurrence is said to be the khalihan of the accused in village 5 No Gumti, Police Station Moffusll in the district of Monghyr. The allegations made in the complaint are as follows :
"The above accused person had taken direct electric connection from Board's mains with his own arrangements to thrash wheat crop with the help of electrically operated thrasher. At the place where he was running his thrasher had no other electric connection in his house. Thus he committed theft of eletrical energy and also interfered with in the Board's supply system. Action against him may kindly be taken accordingly."
This complaint was made to the Special Judicial Magistrate, Patna on 5th April, 1977 and on that a very date cognizance was taken by him and an order for issue of a non-bailable warrant of arrest was passed for his appearance in court on 26th May, 1977.
(2.)Mr. Rajgarhiya for the petitioner contended that the allegations aforesaid do not constitute any offence and hence the order of the Special Judicial Magistrate dated 5 April, 1977 taking cognizance of the offence above mentioned should be quashed. In my opinion, the contention is sound. As held in Sharda Prasad v. State of Bihar, MR 1977 SC 1754, it is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence it is competent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence. The allegations set out in the complaint in the instant case, in my opinion do not constitute the offence of theft. Section 39 of the Indian Electricity Act, 1910 (briefly "the Act") runs as under :
"Whoever dishonestly, abstract, and consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code 1860 (XLV 1860) and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction."
On a perusal of the above it is clear that "dishonesty" is the essential ingredient of the offence of theft. See also the cases of Bhagwan Sahi and another v. Divisional Forest Officer, AIR 194 Patna 264 and In re Dr. Puchalapalli Ram handrareddi, AIR 1960 Andhra Pradesh 569. The complaint in the present case does not say any where that the accused dishonestly abstracted or consumed or used any energy. There is no averment of dishonest intention. In the first part of the aforesaid allegation the only thing is said that the accused had taken direct electric connection from Board's mains with his own arrangement to thrash wheat crop with the help of electrically operated thrasher. It is not said that the accused dishonestly abstracted any energy. The second part of that allegation says that there was no other electric connection at that place in the name of the petitioner. At the end of the allegation the complainant says that the accused interfered with the Board s supply system. There three facts, I think do not constitute the offence of theft as defined in section 39 of the Act.
(3.)Section 44 of the Act runs as follows :
"Whoever- (a) connects any meter referred to in section 26, sub-section (I), or any meter, indicator or apparatus referred to in section 26, subsection (7), with any electric supply line through which energy is supplied by a licensee, or disconnects the same from any such electric supply line......or (b) lays, or cause to be laid, or connects up any works for the purpose of communicating with any other works belonging to licensee......or (c) maliciously injures any meter referred to in section 26, sub-section (1) or any meter, indicator or apparatus referred to in section 26, sub section (7), or wilfully or fraudulently alters the index of any such meter, indicator or apparatus, prevents any such meter, indicator or apparatus from duly registering ; or (d) improperly uses the energy of a licensee ; shall be punishable with fine which may extend to (five hundred) rupees......".
It is further clear that the aforesaid allegations made in the complaint do not make out offence under section 44 either. There is no allegation that the accused maliciously injured any meter referred to in section 25 of the Act. In view of the principles laid down in the case of Sharda Prasad v. State of Bihar, AIR 1977 SC 1754 (supra) there cannot be any doubt that every ingredient of the offence must be alleged in the complaint. That not being so in the present case must be held that cognizance taken was illegal and it should be quashed.


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