K. BHATNAGAR, J. - (1.) THIS petition u/sec. 482 Cr. P. C. has been filed in grievance to the order dated 17. 8. 83 passed by the learned Addl. Session Judge, Sri Ganganagar.
(2.) ON a complaint filed by the police u/sec. 379 read with section 39 of the Indian Electricity Act, 1910 (for short Electricity Act hereinafter) against the petitioner Ved Prakash, the learned Addl. Munsif and Judicial Magistrate, Sri Ganganagar took cognizance against the petitioner and charge-sheeted him for the aforesaid offences. The aggrieved petitioner preferred revision petition and the learned Addl. Sessions Judge, Sri Ganganagar vide the impugned order dated 17. 8. 83 dismissed the revision petition. The ground taken before revisional court was that as the complaint in the case was filed before the police by the junior engineer the case would not proceed in view of the provisions of Section 50 of the Electricity Act. The learned Judge held that the first information report was filed by the junior engineer. The police had filed the charge-sheet u/sec. 39 of the Electricity Act read with section 37 IPC and therefore the provisions of Section 50 of the Electricity Act would not create a bar in the case. The petitioner has challenged the legality of the aforesaid order by invoking the inherent jurisdiction of this court u/sec. 482 Cr. P. C. The learned counsel for the petitioner referring to the principle enunciated in the case of Avtar Singh Vs. State of punjab (l) submitted that abstraction of electricity does not fall within the definition of theft and, therefore, Section 379 is not attracted in the matter learned counsel emphasised that in case Section 379 goes away the provisions of section 50 of the Electricity Act would be attracted and the charges framed against the petitioner are liable to be quashed on this ground. Mr. U. C. S. Singhvi, learned Public Prosecutor placed reliance on the principle enunciated in Omprakash Vs. State (2) and submitted that the junior engineer being the servant of the Electricity Board would be a person aggrieved and therefore, first information report lodged by him is in accordance with the provisions of Section 50 of the Electricity Act. The question of the dishonest abstraction of electricity being a penal offence came for consideration before their lordships of the Supreme Court in the case of Avtar Singh Vs. State of Punjab (l) and it was as under:- A theft of electricity is an offence against the Electricity Act and hence the prosecution in respect of that offence would be incompetent unless it is instituted at the instance of a person named in S. 50 of the Act. " The Legislature while enacting the Electricity Act has headed a chapter commencing from Section 39 as Criminal offences and Procedure. Section 39-reads as under :- 39 Theft of energy Whoever dishonestly abstracts, consume 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. " The question regarding the deeming provision of the Indian penal Code was also considered in the aforesaid decision of the Supreme Court (1) and their lordships were pleased to observe as under:- As the offence is created by raising a fiction, the section which raises the fiction, namely S. 39 of the Act, must be said to create the offence. Since the obstruction is by s. 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. " Their lordships were further pleased to hold as under :- The only way in which it can be said that S. 39 extended S. 378 is by stating that it made something which was not a theft under s. 378, a theft within the meaning of that section. " 6. I, therefore, do not agree with the learned Addl. Sessions Judge that because of the charge being u/sec. 379 read with Section 39 IPC, the provisions of section 50 of the Electricity Act are not attracted to put in another way offence being u/sec. 39 of the Electricity Act and the punishment under the penal Code being only by a deeming provision Section 50 of the Electricity Act would be attracted. The learned Magistrate has framed the charge u/sec. 379 read with section 39 of the Electricity Act. In view of the Supreme Court decision (1), the charge should not have been u/sec. 379 IPC rather it should have been u/sec. 39 of the Electricity Act and the purpose u/sec. 39 of Electricity Act and for the purpose of punishment the provisions of the penal code could have been pressed into service. 7. The point for decision would be whether the Junior Engineer who lodged the first information report before the police was a competent person as envisaged by Section 50 of the Electricity Act. Section 50 of the Electricity Act reads as under :- 50. Institution of prosecutions No prosecution shall be instituted against any person for an offence against this Act or rule, license or order. thereunder, except at instance of the Government or an (Electrical Inspector), or of a person aggrieved by the same. " 8. In Omprakash Vs. State (2) the Division bench of this Court considered Assistant Engineer a person aggrieved within the meaning of Section 50 of the Electricity Act on the ground that he being a person charge of the affairs was a person aggrieved. 9. The facts of the case on hand reveal that the informant junior engineer had on 27. 4. 79 in the afternoon gone to check-up the electricity matter of Roamy Store, Goal Bazar, Sri Gangangar and found dishonest abstraction and use of energy by the consumer. He stated earlier filed the charge-sheet in the court of the learned Munsif Magistrate. As the informant had done the checking in discharge of his duty he falls within the description of the person aggrieved and the police registering a case on his information and filing the charge-sheet on that basis cannot be said to have committed any mistake. The provisions of Section 50 of the Electricity Act have been duly complied with and learned Magistrate has rightly taken cognizance against the petitioner. Despite this finding the petition deserves to be allowed because as observed above the learned Magistrate has framed the charge u/s. 379 IPC read with section 39 of the Electricity Act taking the alleged illegal abstraction of energy by the consumer as a Penal offence whereas it is not so. In other words offence u/s. 39 of the Electricity act and by raising a fiction by this section it is made punishable under the penal Code. As such the form of the charge is not proper. 10. Consequently petition is allowed. The charge in the form it is framed is quashed. The learned Magistrate will be at liberty to proceed with the case in view of the observations made above. The parties are directed to remain present before the trial court on 12th December,1990. .;