[Case Brief] Avtar Singh V/S. State of Punjab


Case name: Avtar Singh V/S. State of Punjab

Case number: 1965 AIR 666

Court: SUPREME COURT OF INDIA

Bench: SARKAR,   A.K.

WANCHOO,   K.N.

DAYAL,   RAGHUBAR

Decided on: 24/08/1964

Relevant Act/Sections: Indian Electricity Act (9 of   1910), ss. 39 and 50


Ø BRIEF FACTS AND PROCEDURAL HISTORY:

1. 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.

2. In this appeal the appellant has not sought to challenge the finding that he had committed the theft. He has only raised a point of law that his conviction was illegal in view of certain statutory provisions.


Ø ISSUE BEFORE THE COURT:

1. whether it had been instituted by a person mentioned in S. 50, the prosecution gave no materials for a decision.


Ø RATIO OF THE COURT

1. In State v. Maganlal Chunilal Bogwat, Tulsi Prasad v. The State and Public Prosecutor v. Abdul Wahab, it was held that the theft was not an offence against the Act while the contrary view was taken in Emperor v. Vishwanath, Dhoolchand v. State and In re P. N. Venkatarama Naicker. According to the court, the view expressed by the Allahabad High Court in Emperor v. Vishwanath is the correct one. The matter was there put in these words:

"The learned Sessions Judge was of opinion that the offence was not an offence against the Act because it was one punishable under the provisions of s. 379 of the Indian Penal Code. It was, therefore, an offence which was created by that section and we are of opinion that the legislature intended section 50 to apply to an offence of this nature.”

2. With regard to the first reason that s. 39 of the Act extended the operation of s. 378 of the Code, the court held that beyond question that s. 39 did not extend s. 378 in the sense of amending it or in any way altering the language used in it.

3. The court held that Section 378, read by itself even after the enactment of s. 39, would not include a theft of electricity for electricity is not considered to be movable property. 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.

4.  It follows that if s. 39 did so, it created the offence itself and s. 378 did not do so. In this view of the matter we do not think it possible to say that the thing so made a theft and an offence, became one by virtue of s. 378. The court held that S. 39 does provide for a punishment. The section, therefore, makes something which was not a theft within that Code, a theft within it, for if the abstraction was a theft within the Code, the section would be unnecessary. It follows from this that the section also makes that theft punishable in the manner provided in it.

5. The court settled dishonest abstraction of electricity mentioned in S. 39 cannot be an offence under the Code for under it alone it is not an offence, the dishonest abstraction is by s. 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft.

6. It seemed to the court that the object of S. 50 is to prevent prosecution for offences against the Act being instituted by anyone who chooses to do so because the offences can be proved by men possessing special qualifications.

7. The court finally held that the present is a case of an offence against the Act and the prosecution in respect of that offence would be incompetent unless it was instituted at the instance of a person named in s. 50.


Ø DECISION HELD BY COURT:

1. The result is that the appeal is allowed

2. The conviction of the appellant is set aside.

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