B.R.ARORA, J. - (1.) THIS miscellaneous petition Under Section 482, Cr. P.C. is directed against the order dated February 1,1987, passed by the Munsif and Judicial Magistrate, First Class, Gulabpura, by which the learned Magistrate framed charges Under Section 379, I.P.C. and Section 39 of the Indian Electricity Act, against the petitioner.
(2.) THE petitioner was working as the Assistant Engineer on April 21, 1983 in the Rajasthan State Electricity Board and was posted at Hurda. On April 22, 1983, an information was received in the Office of the petitioner that M/s. Jagetiya Paper Mills, Roopa Hilli, has unauthorisedly connected its transformer form 11 K.V. Line, charged the transformer and is using electricity for heavy motors in the mill without any meter. On receiving this information, the site was inspected by the petitioner alongwith Shri Vinod Kumar Lumba, Executive Engineer, and Shri Naresh Jain, Assistant Engineer, Hurda, and the report was found to be correct. As M/s. Jagetiya Paper Mills, Roopa Hilli had connected its transfomer from the 11 K.V. Line and it was clearly a case of theft of the electricity energy, therefore, a First Information Report was prepared and it was sent to the Police Station for registration of the case with Shri Brij Kishore, Junior Engineer, R.S.E.B., Gulabpura. The police, on the basis of this information, registered a case Under Section 379 I.P.C. against M/s. Jagetiya Paper Mills. Roopa Hilli and started investingation. The police, after necessary investigation, presented the chargesheet Under Section 379 I.P.C. and Section 39 of the Indian Electricity Act against the petitioner and Gulab Chand Jagetiya, the Managing Driector of M/s. Jagetiya Paper Mills Roopa Hilli, in the Court of the Munsif and Judicial Magistrate, First Class, Gulabpura. The learned Magistrate took the cognizance and issued process. The learned Magistrate, thereafter, by his order dated February 10, 1987, framed the charges against the petitioner and Shri Gulab Chand Jagetiya Under Section 379, I.P.C. and Section 39 of the Indian Electricity Act. Dissatisfied with this order, framing the charges, the petitioner preferred revision petition before the Sessions Judge, Bhilwara, who, by his order dated December 20, 1989, dismissed the revision -petition filed by the petitioner on the ground that the revision -petition filed by the petitioner is not maintainable in view fo the Division Bench Judgment of the Rajasthan High Court. It is against this order that the present petition Under Section 482, Cr. P.C. has been filed. The petitioner has also challanged the order the Judicial Magistrate framed the charge against him. The present petition has been filed by the petitioner against the order framing the charges. At the time of framing the charges, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. At this stage, the Court has to see and consider the evidence on record to find out that the accused has been reasonably connected with the offence and from evidence available on record, there is reasonable probability or chance of the accused being found guilty of the alleged offence. If the record shows that there is possibility or chance of the accused being convicted, the charge may be framed, but if from the evidence, which the prosecution wanted to proudce is fully accepted even then if no case is made -out to show that the accused has committed, the offence, then no charge should be framed and the accused should be discharged. The Court, at the time of framing the charges, should apply its judicious mind and should not blindly accept the decision of the prosecution and frame the charge. At the time of framing the charge, the prosecution is duty bound to show from the record of the case and the documents collected in the course of investigation that the facts emerging there from constitute an offence, for which the accused is charged -with. The learned lower Court, in the present case, has framed charge against the petitioner Under Section 379, I.P.C. and Section 39 of the Indian Electricity Act. So far as the question of Section 379, I.P.C. is concerned, the theft of energy by itself is not an offence under the Indian Penal Code, which is covered by Section 378, I.P.C. The offence of theft of the electricity energy has been made an offence by Section 39 of the Indian Electricity Act by raising a fiction. According to the Section 39 of the Act. Dishonest abstruction, consumption and use of the electrical energy has been made an offence. The theft of the electricity energy would not have been an offence Under Section 379, I.P.C. if it has not been provided by Section 39 of the Indian Electricity Act. It is, therefore, an offence which is created by Section 39 of the Indian Electricity Act. Section 39 of the Indian Electricity Act, which deals with the theft of the energy reads as under: 39 -Theft of energy, - 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 article means for such abstraction, shall be prima facie evidence of such dishonest abstraction.
(3.) A plain reading of Section 39 of the Indian Electricity Act clearly shows that for convicting a person under this Section for illegal abstraction, consumption or use of electricity energy, it is necessary that the accused should be a consumer of the electricity within the definition of that word in the Indian Electricity Act. It is only the consumer who consumes abstracts or uses the electricity energy. Abatement made by any person in this regard has not been made an offence Under Section 39 of the Indian Electricity Act. The presumption regarding abstraction, use or consumption or knowledge or connievance can also arise only against the consumer.;