1. This appeal by the State is against the judgment of the First Class Magistrate, Raichur, dated 3-10-1973, in C.C. No. 133 of 1973, by which he acquit-ted. the accused.
2. The case against the accused was that he dishonestly abstracted, consumed or improperly used electric energy and thereby committed offences punishable under Section 379 of the Indian Penal Code read with Sections 39 and 44 of the Indian Electricity Act, 1910 (hereinafter referred to as tho 'Act').
3. The prosecution in support of its case examined S. Anjaneyalu (P. W. 5), Junior Engineer of the Karnataka Electricity Board, (hereinafter referred to as the Board) working in the vigilance squad. The work of the squad was to detect unlawful consumption of energy. His evidence was that when he checked the installation bearing No. 2334, he found that the meter was not working even though the lights were burning. On examination he found direct connection had been made from the main bypassing the meter. Relying upon this evidence, it was found by the Magistrate that the accused had interfered with the electric installation and consequently used electricity dishonestly with the intention of not paying for it. The facts established certainly constitute an offence punishable under the sections charged, with.
4. But the Magistrate acquitted the accused on the ground that P.W. 5 was not a person aggrieved and the prosecution at his instance was incompetent.
5. Section 50 of the Act states that:
No prosecution shall be instituted against any person for any offence against this Act or any rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same.' This section provides that no prosecution shall be instituted against any person for any offence against the Act or any rule, licence or order except at the instance of:
1. the Government;
2. an Electrical Inspector; or
3. a person aggrieved by the offence.
It is clear from the reading of Section 50 of the Act that prosecution for theft of electric energy can be instituted only by one of the persons mentioned above. Therefore, there could be no prosecution except at the instance of the person aggrieved. In this case, the aggrieved person is the 'Board'. It was the police who instituted the prosecution on the complaint of the Junior Engineer of the Board working in the vigilance squad, whose work was to detect misuse of electric energy. Now the question is whether the prosecution launched on the complaint of the said Junior Engineer, was at the instance of the Board?
6. Upon reading Section 50 of the Act it is clear that the phrase 'at the instance of has purposely been introduced so as to make the provision a very general one. If it had been the intention of the Legislature that mo case should be instituted in court except by the Board itself or the other persons mentioned in Section 50 of the Act, the Legislature would have used the ordinary phrase ''on the complaint of' and the section would have been on the lines that no Magistrate should take cognizance of any offence referred to in Section 50 of the Act except upon the complaint of certain persons. The phrase 'at the instance of means merely 'at the solicitation of or at the request of,' and we think that the Legislature meant only that a prosecution should not be instituted by some independent busy-body who had nothing to do with the matter. (See : AIR1936All742 .
7. In this case the Junior Engineer of the Board discovered the theft and he reported it to the Police, who, after investigation, challenged the accused. The Junior Engineer has given evidence that under Order No. MSEB/H5-6825/69 dated 9-7-1969, he was authorised to institute prosecution against persons for any offence against the Act etc. The Junior Engineer was working dn Vigilance Squad, whose main duty was to detect offences against the Act and launch prosecution. He detected the unlawful use of energy by the accused and reported the matter to Police. He came into court and gave evidence. These facts clearly establish that the prosecution was really at the instance of the Board. Where, therefore, a person acting for and on behalf of the Board lodges a complaint with Police in respect of unlawful extraction of electric energy and the police in turn file a charge sheet, the prosecution must be regarded as instituted at the instance of the Board. The learned Magistrate, therefore, was wrong in holding that the Junior Engineer was not competent to institute prosecution.
8. Therefore, we allow this appeal, set aside the order of acquittal and convict the accused under Section 379, I. P. C. read with Sections 39 and 44 of the Act and sentence him to pay a fine of Rs. 100/- and in default of payment of fine, to undergo simple imprisonment for one week.