1. Petition to revise the order of the learned Sub-Magistrate, Uthamapalayam, negativing the preliminary objection taken by the petitioner that he could not be prosecuted for the offence Under Section 379 IPC read with Section 39 of the Indian Electricity Act, in view of the prior case for the same offence having ended in his favour. The petitioner was prosecuted in C.C. No. 1185 of i960 on the file of the Sub-Magistrate, Periakulam, for the same offence, and he was convicted by the trial court, but he was acquitted by the appellate court on the ground that the non-compliance with the provisions of Section 50 of the Indian Electricity Act was a bar to the prosecution in that case. Subsequently, the prosecution filed the present case after complying with the provisions of S. go of the Indian Electricity Act.
2. The first point urged by the learned Counsel for the petitioner is that Section 50 of the Indian Electricity Act cannot apply to an offence punishable Under Section 379 IPC read with Section 39 of the Indian Electricity Act, as it is not an offence against the Indian Electricity Act. He relied on the decision in Bombay State v. Maganlal Chunilal : AIR1956Bom354 , in support of his contention. It was held in that case that the offence of abstraction of energy which is denned in Section 39 of the Electricity Act, is expressly made an offence punishable Under Section 379 IPC and is not made an offence under the Electricity Act. But a Bench decision of the Allahabad High Court in Vishwanath v. Emperor : AIR1936All742 , has held that the offence of theft of electricity punishable Under Section 379 IPC read with Section 39 of the Indian Electricity Act, is an offence under the Electricity Act, as abstraction of electric energy is punishable as theft only because of Section 39 of the Electricity Act, and hence, Section 50 of the said Act would apply to it.
Having regard to the several provisions of the Act, I prefer to accept the view of the Allahabad High Court. 'Dishonest abstraction of electricity' is not punishable Under Section 379 IPC as electricity is not moveable property within the meaning of Section 22 IPC Since it is not corporal property Section 47 of the Indian Electricity Act provides penalty for offence under the Act not otherwise provided for by Sections 39 to 46. Sections 48 and 49 also refer to penalties imposed by Sections 39 to 47 and the provisions contained in Section 39 and other Sections refer as though Section 39 and other sections are offences. In fact, the heading of Section 39 is Theft of energy', and it supports the above interpretation of the section. Hence the abstraction of electric energy punishable Under Section 379 X. P. C. read with Section 39 of the Indian Electricity Act, is an offence against the Indian Electricity Act and the provisions of Section 50 should be complied with for prosecution to be launched.
3. It follows that the present prosecution of the petitioner after complying with the provisions of Section 50 of the Electricity Act is valid. Even assuming that Section 50 of the Electricity Act is no bar to a prosecution Under Section 379 IPC there was no acquittal in the prior case, which could be pleaded as a bar for a second prosecution Under Section 403 CrIPC In the previous case, the District Magistrate set aside the conviction and sentence against the petitioner on the ground that Section 50 of the Indian Electricity Act had not been complied with, but he did not acquit the petitioner. The learned advocate for the petitioner relied on the decision in Chinna Similan v. Peria Similan 1933 MVN 224, as to the powers of the appellate Court Under Section 423 CrIPC It is clear from the decision that, though the conviction against the petitioner in that case was merely set aside without an order of acquittal, it was held in the circumstances of the case that the order must be held to be one of acquittal. But, having regard to the circumstances of this case which are indicated by the several observations made by the District Magistrate, the judgment cannot be considered as one of acquittal. In fact, the District-Magistrate has observed.
It is always open even now for the State Electricity Board, who is the aggrieved person, or for the Electricity Inspector to assess the evidence afresh and, if necessary, to reprosecute the accused for the same offence.
3a. For the foregoing reasons, the order of the learned Sub Magistrate, Uthamapalayam, negativing the preliminary objection raised by the petitioner, is correct, and this case is therefore dismissed.