1. This is an application in revision from the decision in appeal of the learned Sessions Judge of Agra. Banwari Lal was charged in the Court of the City Magistrate of Agra under Section 379, Indian Penal Code, read with Section 39 of the Indian Electricity Act. The allegation against him was that he had dishonestly abstracted and consumed electrical energy and thereby committed a theft. The-learnad City Magistrate found Banwari Lal guilty and sentenced him to six months' R.I. and to a fine of Rs. 200. The learned Sessions Judge dismissed the appeal and confirmed the sentence.
2. Banwari Lal originally was in the employ of the United Provinces Electric Supply Company at Agra. Some months ago he was dismissed. He was the lessee of a house in which he and his family lived, and in which he kept boarders. The boarders took a sublease from him of' certain of the rooms. These boarders did not have meters in their rooms and paid an inclusive rate to the accused. They were not interested in stealing electricity. One of the employeas of the company noticed an apparatus on this house which he concluded was for the purpose of abstracting electricity from the mains before it went through the meter in the house. He reported this fact and Mr. Gamlen, the Resident Engineer, together with police officers and others, raided the house. It was then discovered that erected on the roof of the house were two large bamboos carrying wires which were connected with the main outside the house and that a bulb in the courtyard was lit from this apparatus. Mr. Gamlen on disconnecting the wires found that the light in the court-yard went out. It was perfectly clear that the apparatus erected was there for the purpose of stealing the company's electricity and that this one lamp at least was being lit from the stolen electricity. Both the lower Courts were satisfied that Banwari Lal was the person who was responsible for erecting this apparatus and for stealing electricity. It has been argued by counsel appearing for the applicant that there is no direct evidence which can satisfy the Court that the offence has been brought home personally to Banwari Lal. In these cases of course it would be impossible for any electrical company or the police to get direct evidence that a certain individual had actually erected an apparatus and attached it to the company's main. Such an operation would obviously be carried on at some time when there would be no witnesses except perhaps members of the family. Section 39 of the Indian Electricity Act of 1910 enacts that 'the existence of artificial means for such abstractions shall be prima facie evidence of such dishonest abstraction.' This of course does not remove from the prosecution the burden of proving an offence against an individual. Such proof must of course largely be circumstantial in character where as in this case-the person charged is the lessee or owner of the house and the consumer of the electricity (that is the person who is officially on the company's books as the consumer of the electricity in the particular house) and where there is a large obvious erection on the roof of the house, or in any part of the house, where it could not possibly escape the notice of the consumer and where in addition the person charged is the only person who would gain advantage from the theft of the electricity, it appears to me that the charge has been proved. An attempt was made in this case to suggest that the apparatus had been created there by some enemy in order to prevent the accused from re-establishing himself in the employment of the Electric Company. This is an idle suggestion and there is nothing to substantiate it. Under all the circumstances of this case, it is quite clear to me that Banwari Lal was properly convicted of the offence with which he was charged.
3. The only question which remains is one of sentence. I have been asked by counsel to use the provisions of Section 562(I-A) of the Criminal Procedure Code, that is to treat the accused as a first offender. I do not think it is possible for me to consent to this application. The terms of the section are that the Court is to take into consideration the age, character, antecedents or physical or mental condition of the offender and the trivial nature of the offence before the Court can properly treat the offender under this section. First of all it is impossible to treat the purloining of electricity as a trivial offence. Further the accused is not abnormal as to age, physical, or mental condition. It is easy for persons with the necessary knowledge to steal electricity. Further it is a mean form of theft. It is a type of offence which ought strictly to be suppressed. It is true in this case that as far as one can tell, the amount of electricity stolen was possibly not large. The bills for electricity of Banwari Lal do not seem to have decreased during the last year. This of course might mean that he had been stealing electricity all the time, but, I think the benefit of the doubt might be given to Banwari Lal. I think on the whole as this is his first offence, and Banwari Lal has hitherto borne a good character and has lost his position in Government service, the ends of justice will be served if the sentence is reduced to one of three months imprisonment and a fine of Rs. 100, in default one months's KI. I order accordingly. The time he has already been in jail will be deemed to be part of the sentence. The accused will surrender to his bail.