K. Nath, J.
1. Revisionists Ram Subhawan and Ram Shankar, sons of Jagai Verma, have been convicted for an offence under Section 39 of the Indian Electricity Act read with Section 379 I.P.C and sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 200/- each, or in default of payment of fine to undergo further rigorous imprisonment for two months.
2. The appeal against the conviction and sentence, recorded by the learned Magistrate, was dismissed by the Additional Sessions Judge, Faizabad.
3. The prosecution case is that Ram Murat Lal, Avar Abhiyanta of Satarkata Adhisthan of the Electricity Department, received information of theft of electricity in the locality and consequently on 11.10.1979 at about 3.45 P.M. he, along with his colleague R.P. Gupta (P.W. 3), Lineman Salig Ram (P.W. 4) and a police force consisting of S.I. Pauhari Singh P.W. 2, and a couple of constables Radhey Shyam Dubey and Girja Shankar Misra, made a raid of the premises of the revisionists. It was said that the revisionist left the spot while the revisionists' tube well was found running from which one Ram Sahai was drawing water for irrigation. At the revisionists' Oil Expeller, which was also electrically operated, one Sita Ram was present for getting the oil extracted from his mustard. It was found that the electric connection, for running these machines, was obtained by a wire placed on the main lines, without the intervening Electric Meter, which had earlier been disconnected on 18.10.1978 for non-payment of electricity dues amount to Rs. 4795.79. The connecting wire was disconnected and taken into custody by the raiding party. Sri Ram Murat Lal lodged the F.I.R. of the incident on the same day at 6.30 P.M. at the police station, on the basis of which the revisionists were prosecuted. Both the revisionists denied the prosecution case and stated that they had been falsely implicated due to enmity of the cousin brother Babu Ram who was an employee of the Hydel Department.
4. The prosecution examined the witnesses, among others, named above. The learned Magistrate and the learned Addl. Sessions Judge Faizabad found that the revisionists could be validly prosecuted by Sri Ram Murat Lal under Section 50 of the Indian Electricity Act and since the revisionists were found committing theft of electricity, in view of Section 39 of that Act, their conviction was recorded and upheld.
5. Learned Counsel for the revisionists says that no offence of theft could be legally made out in the present case having regard to the provisions of Section 378 I.P.C. and Section 39 of the Electricity Act. He has placed reliance upon the decision of Avtar Singh v. State of Punjab : 1965CriLJ605 . The contention is that since electricity is not movable property, it could not constitute 'theft' within the meaning of Section 378 I.P.C. and although by the definition adopted under Section 39 of the Indian Electricity Act, it could be treated to be an offence of 'theft' under the I.P.C. yet since the offence would be one under Section 39 of the Indian Electricity Act, and not under Sections 378/379 of the I.P.C. no punishment for such theft could be awarded because Section 39 of the Electricity Act itself did not provide for any punishment. I think that this contention answered by the following paragraph in the Supreme Court decision at page 107 (of SCR) : (At p. 608 of Cri LJ)-
To put it shortly, dishonest abstraction of electricity mentioned in Section 39 cannot be an offence under the Code for under it alone it is not an offence; the dishonest abstraction is by Section 39 made a theft within the meaning of the Code, that is, an offence of the variety described in the Code as theft. As the offence is created by raising a fiction, the section which raises the fiction, namely Section 39 of the Act, must be said to create the offence. Since the abstraction is by Section 39 to be deemed to be an offence under the Code, the fiction must be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence. The punishment is not under the Code itself for under it abstraction of energy is not an offence at all.
6. It is clear from this decision that abstraction of electricity is by Section 39 of the Electricity Act to be deemed to be an offence under the I.P.C. and the offence so created would entail the punishment mentioned in the I.P.C. for that offence, even though the punishment is not under the I.P.C. itself. I should hold, therefore, that although theft of electricity is not theft within the meaning of Section 378 of the I.P.C. itself, nevertheless, a theft, by virtue of fiction created by Section 39 of the Electricity Act, is liable to be punished in the like manner as a theft under Section 379 I.P.C.
7. Learned Counsel for the revisionists then contends that Ram Murat Lal, Avar Abhiyanta of Satarikata Adhisthan of the Electricity Department, was not the competent person to prosecute the revisionists within the meaning of Section 50 of the Electricity Act. Section 50 runs as follows:
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 Electric Inspector or of a person aggrieved by the same.
If the prosecution of the revisionists is to be sustained, it must be shown that Ram Murat Lal was a person aggrieved by the theft committed by them, Ram Murat Lal admittedly was not an Electrical Inspector; there is no question of his being the Government.
8. Learned Counsel for the revisionists has referred to the case of Dhoolchand v. The State 1957 Cri LJ 233 (Raj) where the Superintendent, Electrical and Mechanical Department, had moved the police on the basis of a verbal report by the wireman regarding the theft of electricity. It was held that Superintendent, Electrical and Mechanical Department, could not be considered to be a person aggrieved and that since generation and distribution of electricity was done by the government, the person aggrieved would also be the government. The Court further noticed that the action taken by the Superintendent, Electrical and Mechanical Department, could not constitute prosecution of the accused because all that he had done was to forward the wireman to the police station with a request for the police 'to check up and to do the needful in the case.' The decision does not seem to be of any help to the revisionists, Firstly, in the present case, Ram Murat Lal had lodged a specific F.I.R. of the commission of the offence by the revisionists and, therefore, it may not be said that he had not taken any decision to prosecute the revisionists; the Rajasthan case is clearly distinguishable on this point. Secondly, there may not have been evidence on record in the Rajasthan case to indicate that the Superintendent, Electrical and Mechanical Department, had any interest in the generation and distribution of the electricity or in prevention of its theft whereas in the present case there is a clear evidence to that effect. Ram Murat Lal had deposed, and the court below had recorded a finding, that it was his duty to make a checking of the consumption of electricity and it was in the course of that checking that he had gone to Gosainganj where he received information, and then proceeded to the spot where he found the theft being committed. I think that since checking of theft of electricity was a part of the duty of Ram Murat Lal, there is no reason to hold that he would not be interested in seeing to it that cases of theft of electricity are brought to book and consequently on his finding a theft being committed, he could certainly be treated as an aggrieved person.
9. Learned Counsel for the revisionists in this connection has also referred to the above-mentioned Supreme Court decision where also it has been held that prosecution had not been launched at the instance of an aggrieved person, but it is not clear from the Report as to who was the person who had launched the prosecution. All that is stated is that the case related to the theft of electricity belonging to the Punjab Electricity Board. Indeed, it was observed at page 108 that it had never been disputed at any earlier stage that the prosecution had not been at the instance of one of the persons mentioned under Section 50 of the Electricity Act. The Supreme Court did not permit the State to raise that question for the first time at the stage before them. The decision, therefore, does not give any guidance upon the interpretation of the expression 'aggrieved person'. I am of the view, therefore, that Ram Murat Lal, in the present case, was an aggrieved person and was competent to launch the prosecution under Section 50 of the Electricity Act.
10. Learned Counsel for the revisionists contended that the revisionists had not been arrested at the spot, that Ram Sahai and Sita Ram, who were actually present and drawing the benefit from the alleged illicit consumption of electricity, have not been prosecuted, and that no independent witness has been examined. I think all these matters are beyond the scope of a revision where concurrent findings of fact have been recorded by the trial and appellate courts.
11. Learned Counsel for the revisionists lastly contends that the sentence awarded may be reduced to the period of imprisonment already undergone as the revisionists have already been in custody for about 1 months each and have already deposited the fine imposed by the Courts below. The record has been examined by the learned Govt. Advocate and it is found that the revisionists have been in prison for about 1 months. The sentence awarded is of three months' rigorous imprisonment. I think that having regard to all these features of the case, the sentence may be reduced to the period already undergone.
12. The revision is partly allowed and while the conviction of both the revisionists for an offence under Section 39 of the Electricity Act read with Section 379 I.P.C. and the sentence of fine are confirmed, the sentence of imprisonment is reduced to the period of imprisonment already undergone.
13. The revisionists need not surrender. Their bail bonds are discharged.