D. Noronha, J.
1. The S.I. of Police, Market Police Station, Bangalore laid a charge-sheet against the accused, proprietor of a bakery in Bangalore, before the Chief Metropolitan Magistrate, Bangalore City, in G. C. No. 263 01 1975, charging the accused under Section 39 of the Indian Electricity Act, 1910 (hereinafter referred to as the Act).
2. Even before the charge was framed, a representation dated 27-2-1975 was filed before the Court by the Junior Engineer (Elecl.) O & M Unit, Hosahalli, who was the Officer concerned. A. copy of that representation dated 27-2-1975 was filed before the Magistrate on 5-3-1975.
3. In the context of this case, it is necessary to reproduce the representation verbatim:
IN THE I COURT OF HON. ME-TROPOLITAN MAGISTRATE, BANGALORE.Complainant: Accused:State by Sri v. S.M. JayaramVeerakempaiahC.C. No. 263/7SSUBMITTED:
I request the Hon'ble Court to kindly permit me to compromise the case against the accused lodged under Section 39 of I. E. Act, 1910 r/w Section 379, I. P.C.
The Secretary, K. E. B. (Karnataka Electricity Board), in his letter No. KEB/A5/ 861/73-74/TE dt. 25-5-73 has directed that the case to be compounded after the party pays Rs. 153-93 towards the loss of energy charges and Rs. 75/- towards the compounding charges. The accused had made good the loss of energy charges in Rt. No. 1095 Dt. 1-6-73 and the compounding charges of Rs. 75/- in Rt. No. 31826 dt. 2-6-73.
The S. P. in his letter No. VG/HQ/ CR/12/73-74 dt. 28-5-73 requested the undersigned to present a compromise application before the Hon'ble Court with a request to compound the case launched against the accused.
Hence. I request the Hon'ble Court to compound the case. The copies of the letter received from the Board and S. P. are enclosed.
Junior Engineer (Elecl.)
O & M Unit, Hosahalli.
4. As pertinently pointed out by Miss Vasudha, learned Advocate for the petitioner (accused), the aforesaid letter is without any strings attached. It is not recited therein that it is without prejudice. It would therefore automatically mean that as between the K. E. B. and the accused, the matter was settled and they were quits.
5. According to the representation, dated 27-2-1975, the parties had compromised the matter as long back as May, 1973 and the accused in fact paid the compromise amount on 2-6-1973, and in January 1975, by laying the charge-sheet before Court, the police seem to have taken into their heads to rake up the matter which had already a decent burial. The police obviously took advantage of Section 39 of the Act, gave their own interpretation to that Section, and filed a charge-sheet against the accused.
6. Section 39 of the Act reads--'Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code....'
7. The erroneous logic pursued by the police is that the offence of theft which is defined in Section 379, I. P.C. is according to the Table appended to sub-s. (2) of Section 320 of Criminal Procedure Code, 1973, compoundable, with the permission of the Court, and in the case of an offence of theft where the value of the property stolen does not exceed Rs. 250/-, the third column of that Table says that the person who can compound is the owner of the property stolen.
8. The argument put forth by the learned Government Advocate is that theft in Section 39 of the Act includes in it all the accompaniments attached to that offence and, since that offence is committed, there can be compounding with certain limitations, and only with the permission of the Court.
9. The above position, according to Miss Vasudha, cannot be pursued to its logical conclusion in the facts and circumstances of the instant case. Even if we take it for the sake of argument that the accused committed theft within the meaning of Section 379, I. P. C, the alleged offence was compromised between the parties, without any prejudice, about two years prior to the Police charge-sheet being filed before the Magistrate. To call the 'compromise' as 'compounding, is a distinction with quite a lot of difference. The two cannot be equated. After the parties had compromised among themselves, the Police had no business at a later stage to butt into the Court and file a charge-sheet and then further represent that the charge-sheet being one for theft under S. 379, I. P. C, can be compounded only with the permission of the Court. As already mentioned this was not a case of compounding but compromise, long before the Police filed the charge-sheet. I do not agree with the learned State Public Prosecutor that the permission of the Court ought to have been obtained. There was no question for permission for compounding, as the compromise was already a fait accompli.
10. On this one point alone, this criminal revision petition has perforce to succeed. It would be superfluous and a surplusage to discuss the other minor technical legal points, which have not been pursued by both sides.
11. This revision petition is allowed and the impugned order of the Magistrate is set aside.