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Emperor Vs. Nazarally V. Natterwala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Appeal No. 465 of 1935
Judge
Reported inAIR1936Bom327; (1936)38BOMLR434; 165Ind.Cas.261
AppellantEmperor
RespondentNazarally V. Natterwala
DispositionAppeal dismissed
Excerpt:
.....by coming into contact with live wire-liability of owner of building-breach of electrical rules-penalty under the rules-punishment under section of the act.;the indian electricity rules, 1911, are not part of the indian electricity act, 1910, and the provision in section 38(4) of the act giving them the same force as if they had been enacted by the act does not make them so.;the policy underlying the indian electricity rules seems to be to make licensees and owners who are experts having, or supposed to have, some knowledge of the technical matters relating to electricity and the maintenance of electrical apparatus liable for breaches of the rules.;section 37(2) (f) of the act enables the governor general in council to make rules providing for the protection of persons and..........to be to penalise breaches of the rules which are deliberate and which any consumer can avoid. the rules, a breach of which is punishable under rules 106 and 106a are rules 29 and 40-a which deal respectively with the breaking of a seal, and the employment of experts only in the repair of electrical installations. these are rules which any non-expert consumer can observe. but there is no rule providing a penalty for breach of rules which might easily be broken by a non-expert unknowingly. obviously it would be extremely difficult, if not impossible, for an ordinary consumer, with no knowledge of the ways of electricity or the sort of weaknesses in the supply lines or installations which are likely to occur, to comply strictly with rule 41, and maintain all his electrical and mechanical.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal by the Government of Bombay against the acquittal of the accused by the Chief Presidency Magistrate for a breach of Rule 41 of the rules made under the Indian Electricity Act, 1910, as subsequently amended.

2. The accused is the owner of a house situate at Doctor Street, Bombay, and in July last an accident occurred in the house. It appears that a contractor was employed to lay chunam in the house, and a workman employed by the contractor, in the course of his work, broke through the lead sheathing of an electric wire and the rubber insulation by means of a metal trowel which the workman had in his hand. He thereby brought the trowel into contact with the electric wire. He was at the moment supporting himself by holding to a pipe for gas, and the result was that he was electrocuted and died.

3. The learned Chief Presidency Magistrate has held as a fact that the earth wire connection in the electric supply line of the accused was defective; but he has not held that the accident was due to the defect, and in the absence of any evidence or finding on the point, I am certainly not prepared to assume that a workman behaving as the workman did in this case, no doubt by carelessness and not by design, would not have been electrocuted, whatever the condition of the electric supply-line might have been. However, it is admitted that the question whether the accident which occurred was due to the defect in the earth wire is really irrelevant, because the prosecution allege that the accused is liable for the defect under the rules irrespective of any consequences which may have followed from that defect.

4. The question to be determined turns on the construction of the Indian Electricity Act, 1910, and the rules made thereunder. Section 37 of the Act enables the Governor General in Council to make rules dealing with various matters, amongst others, providing for the protection of persons and property from injury by reason of contact with, or the proximity of, or by reason of the defective or dangerous condition of, any appliance or apparatus used in the generation, transmission, supply or use of energy; and under Sub-section (4) of Section 37, the Governor General in Council, in making any rule under the Act, may direct that every breach thereof shall be punishable as therein provided. Section 38, Sub-section (4), provides that all rules made under Section 37 shall be published in the Gazette of India, and, on such publication, shall have effect as if enacted in the Act. Then Section 47 provides that whoever, in any case not' already provided for by Sections 39 to 46 (both inclusive), makes default in complying with any of the provisions of the Act, or with any order issued under it, or, in the case of a licensee, with any of the conditions of his license, shall be punishable as therein provided.

5. The learned Government Pleader has argued that if there is no rule imposing a penalty for a breach of Rule 41, then a penalty can be imposed under Section 47; but in my opinion that is clearly not so. Section 47 deals in terms with default in complying with any of the provisions of the Act, or with any order issued under it, or, in the case of a licensee, with any of the conditions of his license, but it does not deal with a breach of any of the rules made under the Act. The learned Government Pleader has argued that inasmuch as the rules will have effect as if enacted in the Act, they should be treated as part of the Act. But clearly the rules are not part of the Act, and a provision giving them the same force as if they had been enacted by the Act does not make them so. It is to be noticed that when the legislature intend to deal with breaches of the rules apart from the Act they say so. For example Section 34(2) (c) deals with an act not in accordance with the provisions of the Act or of any rule made thereunder, and Section 42 (&) provides a penalty for a breach of the provisions of the Act or of the rules made thereunder. I have no doubt that the omission in Section 47 of any reference to a breach of the rules was deliberate, because the legislature realized that the Governor General had power in making rules to provide a penalty-an appropriate penalty-for the breach of the rules, and if he did not desire to provide a penalty in any case, then it would be wrong to impose a penalty in such case by the Act. In my opinion if the accused is to be liable for a breach of Rule 41, he must be rendered liable under one of the other rules, and not under Section 47 of the Act.

6. Now Rule 41 which it is alleged that the accused has broken is in these terms :

Every electric supply-line shall be maintained in a safe condition, as regards both electrical and mechanical conditions, by the person to whom the same belongs.

7. There is no definite finding by the learned Magistrate that the earth wire which is defective belonged to the accused, but I will assume that it did, and therefore the obligation imposed by Rule 41 applies to the accused. We then have to see whether any penalty is provided for a breach of the obligation. Now penalties are provided by Rules 105 to 107, and I think the argument of the learned counsel for the accused that there is a definite policy underlying those penal rules is right. The policy seems to be in the first place to make licensees and owners who are experts having, or supposed to have, some knowledge of the technical matters relating to electricity and the maintenance of electrical apparatus liable for breaches of the rules, I should mention that an ' owner' is defined under the rules as meaning a person (other than a licensee) generating, supplying, transmitting or using energy to whom any of the provisions of Part III of the Act apply. He is a sort of quasi-licensee; a person who is not a licensee, but he is authorized by Government under Part III of the Act to supply energy. The present accused is not an owner within the meaning of the Act, although he may be the owner of the defective wire in question. Rules 105 and 107 impose penalties on licensees and owners (i.e. experts). Rules 106 and 106A impose penalties on persons who are merely consumers, and not experts, and the policy with regard to them appears to be to penalise breaches of the rules which are deliberate and which any consumer can avoid. The rules, a breach of which is punishable under Rules 106 and 106A are Rules 29 and 40-A which deal respectively with the breaking of a seal, and the employment of experts only in the repair of electrical installations. These are rules which any non-expert consumer can observe. But there is no rule providing a penalty for breach of rules which might easily be broken by a non-expert unknowingly. Obviously it would be extremely difficult, if not impossible, for an ordinary consumer, with no knowledge of the ways of electricity or the sort of weaknesses in the supply lines or installations which are likely to occur, to comply strictly with Rule 41, and maintain all his electrical and mechanical appliances at all times in a safe condition. No doubt consumers will be well-advised, as far as possible, to comply with Rule 41 and to have their electrical supply-lines properly inspected by experts. If they do not do so, they run the risk of having their buildings burnt down, or being exposed to an action for negligence by somebody who is damaged by defective connection, though I do not mean to suggest that mere non-compliance with the rule would be evidence of negligence. But to say that every breach of Rule 41 is to be punished, would be to impose a very serious liability upon members of the public who use electrical energy for heating or lighting. The consequences which the learned Government Pleader has suggested would follow from our holding that there was no penalty imposed for a breach of Rule 41 seem to me not to be so serious as he suggests, because there are ample powers of inspection given to Government or to the licensee by the Act, and if it is discovered that any electrical connection is in a dangerous condition, notice can be given to the consumer and an order passed upon him under Section 34(2) of the Act requiring him to remedy the defect: if he fails to obey the order, then penalties are imposed, if not by some special rule, then by Section 47 of the Act which covers failure to comply with orders made under the Act, In my opinion the learned Chief Presidency Magistrate was right in holding that, whether Rule 41 had been complied with or not, there was no penalty imposed for a breach of the rule. That being so, the prosecution fails and the appeal is dismissed.

N.J. Wadia, J.

8. It was apparently admitted in the trial Court and was not disputed before us in the appeal that the supply-line which was found to be defective, and for the defect in which the accused was prosecuted, belonged to him. The prosecution originally was under Rule 41 read with Rule 107 of the Indian Electricity Rules, 1911. The learned Magistrate held that Rule 107 could not apply to the accused, he being neither a licensee nor an owner as defined in the Act; and it is not disputed that so far as Rule 107 goes, the view taken by the learned Magistrate is correct. It is contended, however, that the act of the accused in not maintaining the earth wire connection in good order would amount to an offence under Section 47 of the Act. That section provides penalties for default in complying with any of the provisions of the Act, or with any order issued under it, or, in the case of a licensee, with any of the conditions of his license. But the section makes no reference to default in complying with the requirements of the rules framed under the' Act. It is contended that under Section 38 (4) all rules made under the Act have effect as if enacted in the Act and therefore Section 47 must be held by implication to provide a penalty for breach of the rules also. Section 37, which gives the rule making power, provides expressly in Sub-clause (4) that the Governor General in making the rules may provide penalties for their breach, and Chapter VI of the Rules does provide penalties for breaches of the rules not merely by licensees and owners and their agents and managers, but also in certain cases for breaches by consumers, as for instance, in Rules 106 and 106-A. On the other hand, while Section 47 of the Act makes no reference to defaults in connection with the rules, there are some other sections which do provide penalties for breach of the rules, e.g. Section 42(b) read with S; 34(2) (c). It is clear, therefore, that the omission of any reference to the rules in Section 47 could not have been due to mere oversight or to the fact that the reference to the Act in Section 47 was intended to include the rules. The only inference we can draw from the fact that Sections 34 (2) (c) and 42(b) of the Act expressly provide a penalty under certain conditions for a breach of the rules is that Section 47 was not intended to deal with breaches of the rules. The Act is an extremely technical one and the proper performance of its requirements demands a considerable amount of technical knowledge, and the scheme of the Act appears to be not to impose penalties upon consumers or property-owners for breaches of technical requirements of the Act except after an order requiring them to comply with certain directions, and it is only the failure to obey such orders, and not the mere non-compliance with the rules which is made punishable. Rule 41 explains on whom the responsibility for maintaining the supply-line in a safe condition rests, and if that duty is not satisfactorily carried out, Section 34(2) (c) lays down the remedy, viz. an order in writing from the Local Government specifying the matter complained of and requiring the owner of the supply-line to remedy it in such a manner as shall be specified. Admittedly no such order was issued in this case and the accused cannot be held liable to a penalty for a mere non-compliance with the requirements of Rule 41. I agree that the appeal must be dismissed.


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