State of M.P. Vs Ramcharan

A.P. Shrivastava, J.@mdashThe appellant/State has preferred this appeal u/s 378 of Cr.P.C against the judgment of acquittal, dated 21.12.99, passed by Additional Sessions Judge, Sabalgarh (District Morena, M.P.) in Criminal Appeal No. 2/98. The respondent had been convicted by J.M.F.C., Sabalgarh in Criminal Case No. 89/97, dated 5.12.97 u/s 39 of the Electricity Act, 1910 (in short the ''Act'') read with Section 379 of IPC and sentenced to undergo simple imprisonment for one year with a fine of Rs. 500/-with default stipulation.

2. The facts of the case are that on 8.2.97, in the evening R.K. Sharma (P.W.1) Junior Engineer of Madhya Pradesh State Electricity Board, along-with Assistant Engineer R.C. Bansal(P.W.2) and his party went for surprise inspection of electricity theft at Gram Kulholi. He found that the respondent has illegally taking electric line from the electric poll and was irrigating his field by a 5 horse power motor. Being a matter of an electricity theft, the report Ex.P.2 was lodged by Junior Engineer R. K. Sharma (P.W.1) at the police station Sabalgarh on the basis of which FIR Ex.P.3 was registered. The charge-sheet was filed before the Judicial Magistrate First Class, Sabalgarh. After conclusion of trial, the learned trial Court found the respondent guilty and convicted accordingly as stated in above para one.

3. Being aggrieved by the judgment of conviction, the respondent preferred an appeal before Additional Sessions Judge, Sabalgarh and taken the ground that the complaint has not been filed as per provision of Section 50 of Indian Electricity Act, 1910 because Junior Engineer R. K. Sharma (P.W.1) was not authorized to lodge the report. Apart from this, there is contradictory statement of the prosecution witnesses. Hence, the conviction of the respondent was not proper.

4. The learned Appellate Court acquitted the respondent on two grounds. Firstly, the mandatory provision of Section 50 of the Act was not followed. Secondly, there is contradictory statement of the prosecution witnesses and no independent witnesses produced before the Court. Therefore, the conviction of the respondent was set aside.

5. During the course of arguments, learned Counsel for the appellant/State submits that the learned Appellate Court has wrongly acquitted the respondent because Junior Engineer R.K. Sharma (P.W.1) was in-charge of the area and he could be lodged the complaint u/s 50 of the Act as an aggrieved person. Therefore, the prosecution can be lunched by Junior Engineer R. K. Sharma(P.W.1) is duly complied with in terms of Section 50 of the Act. Secondly, the case of theft of electricity was duly proved by the prosecution evidence.

6. After having heard both the learned Counsel, divergent view expressed about the interpretation of the word aggrieved person which has been mentioned in Section 50 of the Act. Section 50 of the Act reads as follows: Institution of prosecution:-No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of the Government [or a State Electricity Board] or an [Electrical Inspector], or of a person aggrieved by the same.

7. Before coming to this legal aspect, it would be fruitful to see first factual aspect of the case. It is not in dispute that the written report was lodged by R. K. Sharma (P.W.1) on 8.2.97 at the police station Sabalgarh, who was Junior Engineer, M.P.E.B, Jhundpura. The written report is Ex.P.2 and seizure Panchanama was prepared which is Ex.P.1. The report was addressed to S.H.O. Police Station Sabalgarh and on the basis of written report, First Information Report (Ex.P.3) was registered by the police against the respondent.

8. Junior Engineer R.K. Sharma(P.W.1) in his testimony, deposed that on 8.2.97 at about 6-6:15 in the evening, he went for inspection about electrical theft in Gram Kulholi and also recovery of electricity dues. The respondent was taking electric connection directly from the poll. He prepared Panchanama and seized the material at the spot through seizure memo Ex.P.4 by which one electric motor without name plate, green coloured P.V.C. Pipe, 30 feet P.V.C. wire, spade and one four feet iron pipe were seized. Spot map was prepared which is Ex.P.5. It was found that he has committed theft of Rs.2,300 Rs.2,350/-. The articles were sized at the spot by the police. At the time of preparation of Panchanama, Krishnagopal(P.W.3) and Prabhudayal (P.W.4) were present. In cross-examination, the witness deposed that when he reached at the spot, the respondent was present and the electric motor was kept in the field and he was irrigating his field. At the time of preparation of Panchanama, five-six persons were present at the spot.

9. Assistant Engineer R.C.Bansal(P.W.2) corroborated the version of Junior Engineer R.K. Sharma (P.W.1). He deposed that the respondent was taken electric connection unauthorized from the poll and he told Junior Engineer to prepare Panchanama. R.K.Sharma (P.W.1) prepared the Panchanama which is Ex.P.1 and he signed on this document. Thereafter, they were returned to Sabalgarh and lodged report at the police station.

10. Prabhudayal (P.W.4) examined by the prosecution, who was Assistant Lineman. This witness also corroborated the version of Junior Engineer R.K.Sharma(P.W.1) and Asstt. Engineer R.C.Bansal (P.W.2). Ramcharan (P.W.5) who was on duty as A.S.I at police station Sabalgarh on 8.2.97. He deposed that on 9.2.97, FIR was lodged on the report of Junior Engineer and seizure Panchanama was prepared which is Ex. P.4.

11. It is true that the prosecution has not examined independent witnesses. This is not only the criteria to discard the testimony of persons employee in Electricity Board. Unless it is found that the testimony was not reliable or does not inspire confidence. In this case, the learned Appellate Court in para-7 of its judgment without assigning any reason discarded the testimonies of R. K. Sharma (P.W.1), R. C. Bansal (P.W.2), Krishnagopal (P.W.3) on the ground that there are material contradictions in their statements but what are the material contradictions, were not mentioned in the relevant para of the judgment. The learned trial Court has assigned the reason why it has believed the testimony of the prosecution witnesses and found that the testimony of the prosecution witnesses along-with seizure memo are reliable and trustworthy.

12. Now, the crucial point is whether in this case, there is compliance of mandatory provision of Section 50 of the Act. The position is clear that 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 Section 50 of the Act. Learned Counsel for the respondent placed reliance in the case of Avtar Singh Vs. State of Punjab, in which the view has expressed in para 9 of the judgment which is as follows:

(9) We may now refer to certain general considerations also leading to the view which we have taken. First, we find that the heading which governs Ss. 39 to 50 of the Act is Criminal Offences and Procedure. Obviously, therefore, the legislature thought that Section 39 created an offence. We have also said that Ss. 48 and 49 indicate that in the legislature''s contemplation Section 39 provided for a punishment. That section, must, therefore, also have been intended to create an offence to which the punishment was to attach. The word ''offence'' is not defined in the Act. Since for the reasons, earlier mentioned, in the legislature''s view Section 39 created an offence, it has to be held that the was one of the offences to which Section 50 was intended to apply. Lastly, it seems to us that the object of Section 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. That is why it is left only to the authorities concerned with the offence and the persons aggrieved by it to initiate the prosecution. There is no dispute that Section 50 would apply to the offences mentioned in Sections 40 to 47. Now it seems to us that if we are right in our view about the object of Section 50, in principle it would be impossible to make any distinction between Section 39 and any of the Sections from Section 40 to Section 47. Thus Section 40 makes it an offence to maliciously cause energy to be wasted. If in respect of waste of energy Section 50 is to have application, there is no reason why it should not have been intended to apply to dishonest abstraction of energy made a theft by Section 39. For all these reasons we think 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 Section 50.

13. Learned Counsel for the appellant relied upon the decision of the Division Bench in the case of Hargyan Vs. State of Madhya Pradesh, which is very detailed judgment and also considered the decision of the Apex Court in case of Avtar Singh(supra). In Hargyan (supra)case, the Division Bench of this Court observed as follows:

That in case of theft of electricity, Electricity Board is a person aggrieved at whose instance prosecution may be instituted. Electricity Board is a person aggrieved within the meaning of expression person aggrieved occurring in Section 50 of the Electricity Act. Prosecution at the instance of Asstt. Engineer or any person In- charge of the affairs of the Electricity Board was the prosecution started at the instance of the Electricity Board, where electricity is generated and distributed by the Company or Electricity Board. Such Company or Board is the person aggrieved by the offence and where the complaint for theft of electric energy is filed by the Asstt. Engineer or any other officer authorized by the Board and police after investigation submits charge- sheet then this is not an irregularity. The said Electricity Board is a person aggrieved by the theft of electricity and where an officer of the Board whom powers have been delegated to file a complaint before the Police, then complaint is maintainable. By the amendment in Section 50, the said Electricity Board has been included as a person at whose instance the prosecution may be instituted. But this point is not disputed.

The second observation made is that in case of theft of electricity, consumer can also lodge prosecution. It is held that theft of electricity is a social menace and the consumer of electricity is suffering on account of such dishonest abstraction of electricity, therefore, the consumer is also a person aggrieved. If consumer is a person aggrieved then he is also competent to lodge F.I.R. and the prosecution at the instance of such consumer is also maintainable. Thirdly, the relevant portion is or/of a person aggrieved by the same. It is observed by the Division Bench of this Court that the meaning of expression or/of a person aggrieved by the same could not be confined to merely State Electricity Board and/or officers appointed or designated by that Board to institute the prosecutions. The expression surely encompassed within its meaning persons who were directly affected or aggrieved by the offence. Intention of the Parliament is crystal clear from the amendment in Section 50 of the Electricity Act by addition of a State Electricity Board among the category of authorities authorized to initiate the prosecutions and retention of words or/of person aggrieved of the same in the provision. It is manifest that the Legislature intended that besides the State Electricity Board, other persons aggrieved by the same are also authorized to institute the prosecutions. However, when prosecution is to be instituted by State Electricity Board, it has to be instituted or initiated by some officers of the Board specifically authorized by that Board.

The Division Bench in para 18 observed that the word person aggrieved cannot be construed narrowly. It has a wide connotation and considering the case in broad prospective wherein illegal extraction of electricity affects the society, it is held that any officer of the Electricity Board who finds the theft of electricity in his area of work is competent to lodge F.I.R. and any challan or charge-sheet on the basis of such complaint is maintainable and the complaint cannot be thrown out at the threshold and we also hold that a consumer of electricity is also a person aggrieved and prosecution can be initiated at his instance.

The learned Appellate Court in para 6 of its judgment relied upon the decision of this Court in case of State of M.P. v. Tunda reported in 1995 (2) M.P.W.N. 52. But that case is not good law as observed by Division Bench.

14. In case of Ram Subhawan and Another Vs. State of U.P., , Allahabad High Court also discussed person aggrieved as envisaged in Section 50 of the Act the relevant portion in para 8 of the judgment is as follows:

8. Learned Counsel for the revisionists has preferred to the case of Dhoolchand and Another Vs. The State, where the Superintendent, Electrical and Mechanical Department, had moved the police on the basis of a verbal report by the wireman regarding the theft of electricity. It was held that Superintendent, Electrical and Mechanical Department, could not be considered to be a person aggrieved and that since generation and distribution of electricity was done by the government, the person aggrieved would also be the government. The Court further noticed that the action taken by the Superintendent, Electrical and Mechanical Department, could not constitute prosecution of the accused because all that he had done was to forward the wireman to the police station with a request for the police to check up and to do the needful in the case. The decision does not seem to be of any help to the revisionists. Firstly, in the present case, Ram Murat Lal had lodged a specific F.I.R. of the commission of the offence by the revisionists and, therefore, it may not be said that he had not taken any decision to prosecute the revisionists; the Rajasthan case is clearly distinguishable on this point. Secondly, there may not have been evidence on record in the Rajasthan case to indicate that the Superintendent, Electrical and Mechanical Department had any interest in the generation and distribution of the electricity or in prevention of its theft whereas in the present case there is a clear evidence to that effect. Ram Murat Lal had deposed,and the court below had recorded a finding, that it was his duty to make a checking of the consumption of electricity and it was in the course of that checking that he had gone to Gosainganj where he received information, and then proceeded to the spot where he found the theft being committed. I think that since checking of theft of electricity was a part of the duty of Ram Murat Lal, there is no reason to hold that he would not be interested in seeing to it that case of theft of electricity are brought to book and consequently on his finding a theft being committed, he could certainly be treated as an aggrieved person.

The sum and substance of the above is that in case of theft of electricity, F.I.R. lodged by person duty bound to make checking of consumption of electricity. Such person is interested to bring to book such cases of theft and consequently on his finding theft being committed, he could be treated as aggrieved person competent to launch prosecution.

15. In this case, R.K.Sharma (P.W.1) who was Junior Engineer in the area, where theft of electricity was found. While he was going to check the theft of electricity, he found that the respondent has taking illegally electric connection from the electric poll and was irrigating his field by 5 horse power electric motor. He seized all the materials which were used for unauthorized electric consumption. In para 1 of his statement, he deposed that he went to village Kulholi for checking the theft of electricity and recovery of dues of electricity. Therefore, he was In-charge of that locality. It is further corroborated by the testimony of R.C. Bansal (P.W.2) who is Asstt. Engineer, deposed that R. K. Sharma (P.W.1), he himself and the staff of the Electricity Department went to Gram Kulholi for checking the theft of electricity. He found the respondent on the spot by taking electricity illegally.

16. Before coming to the conclusion, I would like to draw that the incident took place on 8.2.97 and in the charge- sheet also 8.2.97 was given and in the evidence of the prosecution, also the date 8.2.97 was deposed by the witnesses. The learned trial Court has wrongly written the date 8.2.96 in the prosecution story. During the course of arguments, the defence counsel also did not raise any objection on this point. It appears that it is a typographical error and could not prejudice any way to the accused.

17. Therefore, in view of the above discussion and the citations rendered herein-above before me, it cannot be said that Junior Engineer R.K.Sharma(P.W.1) was not an aggrieved person because he was in-charge of the area and he found that there was theft of electricity and lodged the report at the police station. It appears that the prosecution has not carefully conducted the case in the trial Court because in the record, the authorization of the officers, who can lodge the complaint is on the record and the Junior Engineer also included in the list but it was not proved by the prosecution in the lower Court. But, it does not make any difference in view of the above discussion and the finding given by this Court. Therefore, the judgment of the learned Appellate Court is set aside. The finding of conviction as recorded by trial Court u/s 39 of the Electricity Act read with Section 379 of IPC is affirmed. Regarding the sentence, the incident took place on 8.2.97 and since then more than 10 years have elapsed. Therefore, looking to the facts and circumstances of the case, the sentence of the respondent is reduced to till rising of the court but the amount of fine is enhanced from Rs. 500/-to Rs. 3,000/-in default of payment of fine, he shall further undergo for two months simple imprisonment. The respondent is directed to appear before the trial Court and the learned trial Court is directed to take necessary steps in view of the directions given by this Court. The bail bond of the respondent shall stand discharged. The appeal is partly allowed accordingly.