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Poona Electric Supply Co. Ltd. and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectElectricity;Criminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 257 of 1964
Judge
Reported inAIR1967Bom27; (1965)67BOMLR534; 1967CriLJ155; ILR1966Bom154
ActsElectricity Act, 1910 - Sections 23 and 33(1); Electricity (Amendment) Act, 1959; General Clauses Act, 1897 - Sections 24; Constitution of India - Article 20(1); Code of Civil Procedure (CPC), 1908
AppellantPoona Electric Supply Co. Ltd. and anr.
RespondentState
Appellant AdvocateF.S. Nariman, Adv., i/b., Paynee and Co.
Respondent AdvocateV.T. Gambhirwala, Asst. Govt. Pleader
Excerpt:
indian electricity act (x of 1910), sections 33, 36a, 37 - indian electricity (amendment) act (xxxii of 1959), section 24--general clauses act (x of 1897), section 24--constitution of india, article 20--notification issued under section 33 prior to its amendment whether actually and factually in force at date of its amendment--notice required to be given under notification whether must be in writing--meaning of expression 'unless it is otherwise expressly provided' in section 24, general clauses act.;the notification issued by the government of bombay on february 9, 1953, under section 33 of the indian electricity act, 1910, before its amendment, was actually and factually in force on the date on which section 33 as amended by the indian electricity (amendment) act, 1959, came into.....order(1) some interesting questions of law arise for decision in this revision application which filed by two of the three accused, who were convicted by the learned judicial magistrate first clss, court no. 5, poona, in a prosecution for having committed certain offences under the indian electricity act, 1910. petitioner no. 1 is a company registered under the indian companies act and owns the electric supply limes in the city of poona and its surroundingd. petitioner no. 2 is the general manager and was responsible for the conduct of the business of the company at the material time. the third accused who was the superintended of the ganeshkhind receiving station and as such was in charge of that station, having been acquitted, is not a party to this revision application.(2) there was a.....
Judgment:
ORDER

(1) Some interesting questions of law arise for decision in this revision application which filed by two of the three accused, who were convicted by the learned Judicial Magistrate First Clss, Court No. 5, Poona, in a prosecution for having committed certain offences under the Indian Electricity Act, 1910. Petitioner No. 1 is a company registered under the Indian Companies Act and owns the electric supply limes in the city of Poona and its surroundingd. Petitioner No. 2 is the General Manager and was responsible for the conduct of the business of the company at the material time. The third accused who was the Superintended of the Ganeshkhind Receiving Station and as such was in charge of that station, having been acquitted, is not a party to this revision application.

(2) There was a major accident in the Ganeshkhind Receiving Station of the Poona Electric Supply Company on the 15th of May 1961, at about 3 p.m. The prosecution case was that the oil circuit breaker of one of the two incoming feeders burst and affected the supply of electricity, resulting in the cutting of the supply to the city of Poona and its surroundings. As a result of the burst, 9 persons including original accused No. 3, received injuries and 2 of them succumbed to their injuries. The complaint was filed by one Yeshwant Ganjanan Penkar, who was the Electrical Inspector for the city of Poona, on the 12th of June 1962, alleging, firstly, that the company was bound to inform him about the accident within 24 hours of its occurrence and that not having been done, the company and accused No. 2 who was its General Manager, had committed an offence under S. 33 of the Indian Electricity Act, 1910. The other allegation was that in the inquiry which was made after the accident relating to the causes of the accident it had transpired that the accident was due to the fact that the apparatus of receiving electric supply was not maintained in accordance with the standards of Indian Standards Institution. It was also alleged that the company had not changed the oil since the 3rd of September 1958 and has thus acted in contravention of the Code of practice for maintenance of insulating oil set down by the Indian Standards Institution. On these and other allegations it was stated that accused Nos. 2 and 3 who were in charge of the works of the company were required to maintain the apparatus of receiving electric supply in accordance with the standards of the Indian Standards Institution as required by Rule 29 of the Indian Electricity Rules, 1956, and they having failed to do so had committed an offence under Rule 29 read with R. 141 of the Indian Electricity Rules. The learned Magistrate acquitted accused No. 3 on all the counts. He acquitted accused Nos. 1 and 2 of the offence under R. 29 read with R. 141 of the Indian Electricity Rules. He, however, convicted them for having committed offence under S. 33 read with S. 47 of the Indian Electricity Act and sentenced both the accused to pay a fine of Rs. 170 each and directed that in the event of accused No. 2 not paying the fine, he should suffer S. I. for one month. As regards accused No. 1, i.e., the Company, he directed that the fine should be recovered from the property of the company. There was an appeal against this order of the learned Magistrate to the learned Sessions Judge, and the learned Additional Sessions Judge, Poona, who heard the appeal, confirmed the convictions and the sentences imposed on the accused and dismissed the appeal. That is why the present revision application has been filed by the two accused against the order of the learned Additional Sessions Judge.

(3) It was not disputed that a written notice relating to the accident, as required by the Electricity Act, was not given on the 15th of May 1961. The defence of the accused was that although a written notice was not given within 24 hours of the accident, they had not committed any offence under S. 33 of the Indian Electricity Act, read with the relevant rules made thereunder, inasmuch as intimation of all the particulars required to be communicated in a written notice had already been communicated to the Electrical Inspector within 24 hours of the accident and that was enough compliance with the requirements of S. 33 of the Indian Electricity Act.

(4) Before discussing the evidence on the question whether intimation relating to all particulars was given or not, it would be convenient to refer to the relevant provisions of the Act and the rules so that the contentions made before me by the learned Counsel on behalf of the petitioners can be properly appreciated. The Indian Electricity Act first came on the statute book in March 1910, but it has undergone many changes since then and one of the changes with which we are concerned in this application was the amendment effected by the amending Act No. 32 of 1959, called the Indian Electricity (Amendment) Act, 1959. By S. 24 of this Act S. 33 was substituted. Before the substitution, sub-section (1) of S. 33, to the extent relevant, was as follows:

'33(1). If any accident occurs in connection with the generation, transmission, supply or use of energy . . . . . and the accident results or is likely to have resulted in loss of life or personal injury, such persons shall give notice of the occurrence and of any loss of life or personal injury, actually occurred by the accident, in such form and within such time and to such authority as the State Government may be general or special order direct.'

(5) Under this section, prior to the amendment, a notice of the accident had to be given to such authority as the State government may be general or special order direct. This notice had to be given in such form and within such time and to such authority as the State Government may by general or special order direct. Therefore, the time within which the notice was to be given, the form in which it was to be given and the authority to which it was to be given were to determined by the State Government. Before the substitution of this section by Act No. 32 of 1959, a notification had been issued by the Government of Bombay on the 9th of February 1953, prescribing the requirements of the notice contemplated by S. 33 and the authority to which the notice was required to be given. Under this notification the notice had to be given within 24 hours of the occurrence of the accident and it had to be addressed to the Electric Inspector, in writing. It was also required to be given to the District Magistrate if the accident occurred outside the limits of Greater Bombay, or to the Commissioner of Police, if the accident occurred within Greater Bombay. The particulars required to be communicated by such notice to these authorities were also indicated in this notification and it would be necessary to reproduce that part of the notification. It is as follows:

' . . . . . . every such notice shall contain full particulars of the time, place and nature of the accident and of any loss of life or personal injury actually occasioned by the accident and information as regards the cause or the probable cause of such accident.'

The Schedule mentions the electric Inspector, Poona, as the authority to whom the notice is required to be addressed for accidents occurring within the areas comprising the district of Poona. In this context, it would now be convenient to refer to the amended S. 33(1) which was substituted by Act No. 32 of 1959. Sub-section (1) of S. 33 is as follows:

'33(1). If any accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply-lines or other works of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed to the Electrical Inspector and to such other authorities as the appropriate Government may by general or special order direct.'

It is evident that after the substitution of the said section, the notice of the occurrence of any such loss or injury actually caused by the accident is required to be given in such form and within such time as may be prescribed . Under S. 2(j) of the Act 'prescribed' means prescribed by rules made under the Act. The notice, therefore, would have to be given in such form and within such time as may be prescribed under the rules framed under the Act. Under the section as it stood prior to the amendment, the notice had to be in such form and within such time and to such authority as directed by the State Government by a general or special order. similarly, under the amended section, it is provided that the notice in the form and within the time prescribed under the rules must be given to the Electrical Inspector and in addition to such other authorities as the appropriate Government may by general or special order direct. Section 36A of the Act, constitutes a Board called the Central Electricity Board to exercise the powers conferred by S. 37. Section 37 provides for the power of the Board to make rules, and one of the items in respect of which the Board can make rules is, under clause (1) of S. 37, 'to provide for any matter which is to be or may be prescribed'. After the amendment, therefore, the form in which and the time within which the notice has to be given would have to be provided in the rules framed by the Board under S. 37 of the Act.

(6) Now, it is common ground that the rules which have been framed by the Board do not provide for the form in which and the time within which the noticee required to be given under S. 33(1) has to be given. The prosecution, therefore, relied on the notification issued by the Government of Bombay on the 9th of February 1953 under the section as it stood prior to the amendment of the Act by Act No. 32 of 1959. The contention was that the notification issued under the section before its substitution in 1959, continued in force and it was obligatory on the company and the General Manager to have given notice in writing to the Electrical Inspector, Poona, within 24 hours of the occurrence, and since admittedly no written notice was given till the 22nd of May 1961 the accused had committed an offence under S. 33 read with S. 47 of the Act.

(7) It was the defence of the accused that the notification was no longer in force and the rules framed by the Board under s. 37 of the Act not having provided for the form in which and the time within which the notice under Section 33(1) was required to be given, there was no obligation to give any such notice. In the alternative, it was contended that even if a notice was required to be given within 24 hours, there was substantial compliance of that requirement inasmuch as such material particulars as were required to be communicated to the Electrical Inspector under the notification had in fact been communicated and the accused had, therefore, committed no offence.

(8) The learned Magistrate took the view that by virtue of S. 24 of the General Clauses Act, the notification has continued in force and it shall be deemed to have been made or issued under the provision re-enacted, i.e., in this case the section which was substituted by Act No. 32 of 1959. He also negatived the argument that the notification, after the re-enactment of the section, was not law in force at the time of the commission of the act charged as an offence. Before dealing with the alternative argument as to substantial compliance of the notification, it would be convenient to refer to the two contentions raised on behalf of the defence which, if accepted, will go to the root of the matter and will render the consideration of the other question unnecessary.

(9) The first contention of Mr. Nariman, the learned counsel appearing for the petitioners, was that the notification which was issued under section 33(1) prior to its substitution by Act No. 32 of 1959, was not the law actually and factually in existence at the relevant time and therefore the accused could not be convicted for the offence charged against them. Reliance was placed on Art, 20 of the constitution in support of this argument. Article 20, to the extent it is relevant, is as follows; 'No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, . . . . . .' Mr. Nariman says that even assuming that s. 24 of the General clauses Act attracted the notification issued under section 33, before irs re-enactment, it cannot be said to be law actually and factually in force. It would be necessary to refer to S. 24 of the General Clauses Act, to appreciate this argument. Section 24, to the extent it is relevant for this petition, is as follows:

'24. Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order . . . . . . . . . . . . . . . .' Under this section, where any Central Act is repealed and re-enacted, a notification issued under the repealed Act 91) shall continue in force and (2) shall be deemed to have been made or issued under the provisions so re-enacted law expressly provides otherwise and the notification so continued or deemed to have been issued under the re-enacted law is not inconsistent with the provisions re-enacted. Mr. Nariman says that this section creates a fiction. It is a deeming provision under which a notification made or issued under the repealed provision is deemed to have been made or issued under the provision re-enacted. Such a notification, according to his contention, may be law by a fiction, but it was not law actually in existence on the date of the re-enactment. He points out that the accident occurred on the 15th of May 1961 on which date the law in force was S. 33(1), as substituted by the Amendment Act No. 32 of 1959 and this was the only section which could be said to be in force factually. The notification, according to his contention, may be in force by a legal fiction, namely, the deeming provision contained in S. 24 of the General clases Act, but that notification cannot be said to be the law in fact inforce on the date on which the accident occurred. In his submission, Article 20 of the Constitution, contemplates that no person shall be convicted except for violation of a law in force and the law in force must be law actually and factually in force. The contention put that way is no doubt attractive, but if the provisions of section 24 of the General Clauses Act, are considered, it is difficult to accept it and hold that the notification issued under the Act prior to its re-enactment was not law in fact in force on the material date. Of course, this assumes that section 24 is applicable and there is no express contrary provision showing that the notification is superseded or that it is not inconsistent with the provisions re-enacted. Section 24 itself continues in force a notification which is not inconsistent. The only fiction is that the notification which is so continued in force shall also be deemed to have been made or issued under the provisions re-enacted.

(10) Reference was made to the decision of the Supreme Court in W. R. E. D. Co. Ltd. v. State of Madras, : [1963]2SCR747 . By an earlier decision the Madras Electricity Supply Undertakings (Acquisition) Act (43 of 1949) was declared ultra vires by the Supreme Court on the ground that the Act was beyond the legislative competence of the Madras Legislature. Thereafter the Madras Electricity Supply Undertakings Acquisition Act (29 of 1954) was passed. Some of its provisions had retrospective operation and in particular section 24 of the Act validated orders made, decisions or directions given, notifications issued, preceedings taken and acts or things done under the former Act. It was contended that these notifications which were issued under the earlier Act, contravened article 31(1) of the constitution which provided that 'no person shall be deprived of his property save by authority of law'. The expression 'law', it was contended, postulates the existence of an antecedent law before a citizen is deprived of his property and since the notification was issued on the assumption that there was an antecedent law viz., the earlier Act of 1949, it was not valid under Article 31 of the Constitution. In the context of this argument the Supreme Court construed Article 20(1) of the Constitution. Emphasis was placed on the expression 'law in force' used in Article 20(1). It is necessary to bear in mind that section 24 of the validating Act was retrospective in the sense that it validated actions taken under the provisions of the earlier Act. In this context the Supreme Court held that it must be assumed that before the notification is issued the relevant provisions of the Act were in existence and so Article 31(1) must be held to have been complied with in that sense. That is why reference was made to the difference in the expressions 'law' and 'law in force'. It was observed:

'By using the expression 'law in force' in both the parts of Article 20(1), the Constitution has clearly indicated that even if a criminal law was enacted by any legislature retrospectively, its retrospective operation would be controlled by Article 20(1). A law in force at the time postulates actual factual existence of the law at the relevant time and that excludes the retrospective application of any subsequent law. Article 31(1), on the other hand, does not use the expression ':law in force at the time' ; it merely says 'by authority of law' and so, if a subsequent law passed by the legislature is retrospective in its operation, it would satisfy the requirement of Article 31(1) and would validate the impugned notification in the present case.'

The reference, therefore, was to legislation which validated ex post facto certain notification etc., by making the Validating Act retrospective in its operation. In that sense the Supreme Court referred to actual, factual existence of the law at the relevant time. The actuarial existence of the law by a fiction because of the retrospective validation by a validating statute would not make the law, which was otherwise invalid, factually in existence at the time when the alleged offence was committed. That is why the observations relate to validating legislation which has retrospective effect and which validates ex post facto certain notifications issued under the former Act. In this case the notifications issued under S. 33, as it was prior to its re-enactment, were not validated retrospectively by a subsequent validating legislation. On the contrary, section 24 of the General Clauses Act, provides that such notifications etc., shall continue in force and shall be deemed to have been made or dismissed under the provisions re-enacted. Therefore, simultaneously with the re-enactment of section 33 the notifications issued under the repealed provision continued in force. They would be so continued if it were shown that there was no express provision otherwise or that they were not inconsistent with the provisions re-enacted.

(11) Mr. nariman then invited my attention to the decision of a Division Bench of the Andhra Pradesh High Court in In re, Lingareddi 24. Mr. Justice Bhimasankaram considered the meaning of the expression 'law in force' in Article 20 of the Contitution. A similar argument on which reliance was placed on Section 24 of the General Clauses Act was advanced and it was contended that although the rules etc., framed under the repealed Act may continue in force under the new Act for other purposes, still no punishment as provided under the new Act can be made for violation of the rules made under the earlier Act, because they are not rules really in force but they are rules which are under the General Clauses Act, only deemed to be in force. Dealing with this argument, the learned Judge concluded as follows (p. 25):

'The rules and regulations made under the old Act, it is true, continue in force, but for the purpose of a criminal prosecution, they cannot be properly described as being 'laws in force' because they are not rules made under the new act, but are only to be deemed to be made thereunder.'

It is true that on this view taken by the Division Bench of the Andhra Pradesh High Court, laws which are deemed to be in force because of the application of section 24 of the General Clauses Act, cannot be held to be laws in force for the purpose of a conviction in a criminal prosecution for violation of rules or notifications under the old Act. But in view of what the Supreme Court has observed in : [1963]2SCR747 , to which I have just referred, it is clear that they were only referring to ex post facto legislation which validates retrospectively certain notification or rules issued under an earlier Act.

(12) The question which arose for decision by the Supreme Court in Chief Inspector of Mines v. K.C. Thapar, : (1961)IILLJ146SC was an identical question as to whether rules, notifications etc., which continue in force because of section 24 of the General Clauses Act, were laws in force, so that any violation of those rules or notification could result in a conviction. It was held as follows (p. 845):

'Equally untenable is Mr. Pathak's contention that the contravention of the Indian Coal Mines Regulations, 1926, which were at the date of contravention 'deemed' to be regulations under the 1952 Act, was not a violation of a law in force on such date, so that Article 20(1) is a bar to the conviction of his clients. The relevant portion of Article 20(1) lays down that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence. The result of this is that if at the date of the commission of an act, such commission was not prohibited by a law then in force, no future legislation prohibiting that act with retrospective effect will justify a conviction for such commission. In other words, if an act is not an offence at the date of commission no future law can make it an offence. But how, on the facts of this case the accused can claim benefit of this principle embodied in article 20(1) it is difficult to see. They are being charged under Section 73 and Section 74 of the Mines Act, 1952, for the contravention of some regulations. Were these regulations in force on the alleged date of contravention? Certainly, they were in consequence of the provisions of Section 24 of the General Clauses Act. The fact that these regulations were deemed to be regulations made under the 1952 Act, does not in any way affect the position that they were laws in force on the alleged date of contravention. The argument that as they were 'regulations' under the 1952 Act, in consequence of a deeming provision, they were not laws in force on the alleged date of contravention is entirely misconceived.'

The Supreme Court has thus made a distinction between laws which are continued in force and laws deemed to be in force by a future legislation, which prohibited certain acts with retrospective effect. The moment Section 33(1) was re-enacted all notifications issued under the earlier Section 33 were continued in force by virtue of Section 24 of the General clauses Act and there is not question of any legislation in future making them effective from an antecedent date, so as to give them retrospective effect. The notification must therefore be said to be actually and factually in force on the date on which the re-enacted provision came into force. It is true that the decision in : (1961)IILLJ146SC was not referred to in the later decision, viz., : [1963]2SCR747 . But that must be presumably because the question which arose in the later case was only regarding a validating legislation which retrospectively validated certain notifications issued under the earlier Act. In this view of the matter, it is not possible to agree with the contention that the notifications, for the breach of which the petitioners have been convicted, were not actually and factually in force on the date of the offence.

(13) The next argument of Mr. Nariman is that Section 24 of the General clauses Act will not protect the notifications in question, firstly, because the re-enacted Section 33(1) of the Act, makes express provisions for laying down the form in which and the time within which the notice of the occurrence is required to be given. He also says that under the re-enacted provision notice has to be given to the Electrical Inspector and to such other authorities as the appropriate Government may by general or special order direct. Under the repealed Section 33(1), the notice had to be given to such authority as the State Government may by general or special order direct. In his submission the re-enacted Section 33(1) expressly provides that the notice must be given to the Electrical Inspector, and, only in addition, to such other authorities as the appropriate Government may by general or special order direct. Similarly, under the repealed Section 33(1) the form in which and the time within which the notice was to be given was to be determined by the State Government. But under the re-enacted Section 33(1) the form in which and the time within which the notice is to be given is as may be prescribed, i.e., as prescribed in the rules framed by the Central Electricity Board. This, according to Mr. Nariman, is an express provision and since there is an express provision, the old notification issued under the repealed Section 33(1) cannot be said to have continued in force. Now, it is not possible to accept this argument because, in my view, it does not correctly appreciate the expression 'unless it is otherwise expressly provided' in Section 24 of the General Clauses Act. All that the expression in that section means is that the notification, rules etc., under the repealed Act shall continue in force provided they are not inconsistent with the re-enacted provision, unless there is an express provision in the re-enacted legislation to the effect that they shall not so continue in force. There is not doubt that after the amendment of the Act, by Act No. 32 of 1959 there is no express provision to the effect that the notifications, rules, etc., under the repealed provisions shall not continue in force. The result is that such rules and notifications shall continue in force unless, of course, it is shown that they are inconsistent with the provisions of the re-enacted section. Mr.Nariman therefore also contends that the notifications are inconsistent with the re-enacted provision. According to him, the very fact that the power of making rules for prescribing the form in which and the time within which the notice is to be given is now of the Board, instead of the Government, the provision must be deemed to be inconsistent with the repealed provision. I do not think that this contention has any force. All has indicated a different manner prescribing the conditions of giving notice, but in substance it is a provision which is consistent with the earlier provision because it deals substantially with the requirement to give notice of the occurrence in a form prescribed and within the time prescribed. If any authority were needed, one may refer to Chunilal Vallabhaji v. State, : AIR1959Bom554 , in which a similar contention was raised and negatived. The argument of Mr. Nariman, therefore, that section 24 of the General Clauses Act will not protect notifications issued under the repealed section 33(1) must fail.

(14) The next argument is that even if the notification was inforce and there was an obligation to give a notice of the occurrence on the facts of this case, it must be held that the requirement had been substantially complied with and the accused, therefore, cannot be held to be guilty of any offence. Mr. Nariman says that what is mandatory under the section and the notification is that a notice shall be given intimating to the Electrical Inspector full particulars of the time,place and nature of the accident and of any loss of life or personal injury actually occasioned by the accident and information as regards the cause or the probable cause of such accident. He contends that eventhough the notification of the 9th of Feb. 1953, requires a notice in writing to be given within 24 hours, if, in fact, within that period, a notice intimating all the particulars required to be intimated under the notification has been given to the Electrical Inspector it must be held that such notice was in substantial compliance with the requirements of the notification and the provision that it must be in writing must be deemed to be a directory provision. In his submission, the enactment namely, section 33(1), imposed a duty on conditions, but not being conditions precedent to the exercise of jurisdiction, are subject to the maxim 'lex non cogit ad impossibilia aut inutilia'. he argued that if all the particulars are shown to have been intimated to Electrical Inspector, the insistence of a written notice would not be justified because the performance of the condition that it should be a notice in writing would be idle and superfluous. He points out that there was clear evidence to show that the accused had written 24 hours of the occurrence given intimation of all the particulars referred to in the notification of 9-2-1953, to the extent to which it was possible to be done, and the mere fact that the notice was given on the 22nd of May 1961, instead of within 24 hours, would not make any difference since the provision has been substantially complied with. It is a very interesting argument, but in order to appreciate it, it would be convenient to refer to certain facts which have been brought out in the evidence. The accident occurred on the 15th of May 1961. A complaint had been filed by one Penkar, who was at the relevant time the Electrical Inspector. He has given evidence. One Deshpande, who was at the relevant time Assistant Electrical Inspector, has also given evidence. Penkar has stated that he first got the information of the accident at about 4-15 p.m. on that day from his sectional officer, one Kulkarni, on a telephone. Kulkarni's office is in the compound of Rajbhavan at Poona, which is near the Ganeshkind Receiving Station where the accident occurred. When he for this information he called Deshpande and both went to the Ganeshkind Receiving Station to find out what had happened. He saw there some ordinary person & one Coyajee, who was a supervisor at that station. He found at that time that the circuit breaker of the incline feeder No. 2 had burst and his conclusion was that oil had spread out. He therefore left Deshpande to make necessary inquiries and left for Rajbhaven to see that the supply of electricity there was not cut off. He admits that he himself did not make any investigation at the Ganeshkhind Receiving Station, because he left the matter of investigation to Deshpande. He also admits that he had ascertained the time of the accident from Coyajee and the probable cause of the accident had been ascertained by his assistant Deshpande. He also admits that further enquiries as to the cause of the accident could not be made since he could not obtain the statements of the injured who were in the hospital and Deshpande could not take those statements because of their condition. Then the following statements made by Penkar are material:-

'I know that the persons who would be in a position to give more detailed information were lying in the hospital then. Up to 23rd May 1961 none of the persons working in the switch room were able to give any statement. The first statement which we were able to get from any of the injured was on 31st May 1961. I know that the officers of the company were making efforts and were engaged in restoration of electricity supply to Poona on 15th May 1961.'

From the evidence of Penkar it would be clear that even though he did not make any detailed enquires he had obtained such information as he could, such as the time when the accident, occurred & he could not make any further enquiries because the persons who were injured in the accident were lying in the hospital and their statements could not have been obtained till the 31st of May 1961, till which time they remained in the hospital. It is also clear that detailed enquiries were left to be made by his assistant Deshpande who remained at the Ganeshkhind Receiving Station after Pankar left. It would therefore appear that Panker in effect deputed to continue the enquiry on that day. Deshpande also admits that he was left at the Receiving Station for further inquiry and Penkar left for Rajbhavan. He had in fact visited the injured persons within 2 to 4 days in the hospital and had attempted to obtain information from them, but their condition was such that they could not make any statement. He also admits that he was told by Shah. accused No. 2, that information could not be given because his staff members were engrossed with the work of restoring supply and that he would be in a position to give information after a few days. It is very material to refer to the following statements made by Deshpande in his cross-examination:-

'On the date of accident when I had been to the spot of accident, I was informed that a number of employees were injured. So also I was shown the damaged O. C. B. of incoming feeder No. 2 I was told as to what had happened and how the serious fire had squirted out. I had not got full details or the causes of accident but approximately I find that the cause of accident might be due to O. C. B. not functioning properly under faulty conditions. I was there on spot from 4-30 to 5 p.m. I also looked to the various connections made to the switch-board penal. I found that those persons who could give more detailed information were already in hospital for treatment. When I have mentioned in examination-in-chief, that I tried to get additional information, it only means that the more detailed information regarding the accident. No further information was necessary apart from the details referred to above.'

On this evidence there could be no doubt that excepting the exact cause of the accident, there was no information which Deshpande had not received during his visit to the Ganeshkhind Receiving Station on the date of the accident. The admission Deshpande shows that he had notice of the time, the place and the nature of the accident. He had notice as to whether there was any loss of life or personal injury occasioned by the accident. He had information about the probable cause of the accident, although he had no information relating to the actual cause of the accident. He has admitted that such information could not be had because the employees who were injured were in the hospital and it was not possible to obtain their statements. He has fairly admitted that all the information which he wanted had become available to him on that day and do further information was necessary.

(15) If this is the position, Mr. Nariman contends and in my view rightly that the requirements of the notification issued under the repealed section 33 which was in force at that time had been substantially complied with. It is well-known that when a condition is impossible of performance, the condition must be treated as dispensed with and it is in such cases that the maxim lex non cogit ad impossibilia aut inutile applies. In English the maxim means, 'The law does not compel the impossible.' To the same effect are two other maxims. 'Impotentia excusat legem', which means 'Inability is an excuse in law' and 'Argumentum ab impossibly plurimum valet in lege' which means 'An argument deducted from an impossibility greatly avails in law'. On Mr. Deshpande's admission, it was impossible to give the exact cause of the accident because the persons from whom that information could be obtained had been injured and were incapable of making a statement for a number of days after the accident. Therefore the requirement of the notification that the cause of the accident must be intimated was impossible of performance within 24 hours of the accident. so far as the probable cause was concerned, Deshpande himself admits that it had been known to him. The other particulars required to be intimated had also been admittedly known to Deshpande on the day of the accident. Mr. Nariman, therefore, relies on this maxim and on the observation in Maxwell on Interpretation of the Statutes, Eleventh edition, at page 373, which are as follows:-

'Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible.'

It is non-compliance had arisen out of an excusable mistake, the Courts will sometimes exercise a discretion in extending the time when it does not affect the question of jurisdiction. The notification, to the extent that it requires notice to be given regarding the particulars mentioned therein, must be considered to be an absolute requirement which must be complied with. But to the extent to which it says that it must be in writing, it must be treated to be directory and not absolute. Substantial compliance with the requirement of notice, if proved, must be treated as sufficient compliance for the purposes of Section 23 of the Act. It is well settled that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directive enactment is obeyed or fulfilled substantially. It is clear on the facts of this case that insistence on a written notice, when in fact a full notice of all the particulars had been given, was insistence on an idle performance of a directory requirement. So far as the particulars relating to the cause of the accident are concerned, it is clear from Deshpande's evidence that that condition was impossible of performance. Mr. Gambhirwala, who appeared for the State, contended that although all the particulars had been known to Deshpande, on the date of the accident, the requirement of the notification that the notice must be in writing must be treated to be a mandatory provision since the notification is under a provision of a statute which provides for safety of the public and the workmen employed in an electrical undertaking and strict interpretation of that notification is necessary with a view to seeing that the very object and purpose of the notification is not defeated. There is no doubt that the object and purpose of requiring that notice of all these particulars must be given would be defeated if there is not compliance with the requirement of notice. But, if in fact there is substantial compliance with the notice and if all the particulars are found in fact to have been communicated to the Electrical Inspector, it is a case in which there is only a technical non-compliance which cannot defeat the object and purpose of the notification. I am satisfied on the evidence led on behalf of the prosecution itself in this case that the requirement of notice had been substantially complied with, although it was a Technical non-compliance in the sense that the notice was not in writing. I would therefore accept the contention of Mr.Nariman that the accused in this case had not committed an offence for breach of the notification issued under the repealed Section 33(1) of the Act. I may mention that the maxim that 'law condones the impossible' has been applied by this Court in Emperor v. Ganpat 40 Bom LR 820: AIR 1938 Bom 427in a criminal case. The Division Bench in its judgment observed as follows:-

'In construing the provisions of a statute, regard must be had to the express terms of any limitation contained therein. If in the interpretation of a statute, the Court finds duty enjoined by it either impossible of performance and beyond the normal capacity of a reasonable or prudent man, or when performance in the strictest language of the enactment is either idle or impossible, then the enactment must be understood as dispensing with the strict performance of that duty.'

(16) I would, therefore, set aside the conviction and sentence imposed on the accused by the learned Magistrate and confirmed by the learned Additional Sessions Judge for the offence under Section 36 read with Section 47 of the Indian Electricity Act, 1910, and acquit him.

Fine, if paid, be refunded.

(17) Petition allowed.


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