N.K. Sen, J.
1. This is an appeal by special leave under the provisions of Section 417 (3) of the Code of Criminal Procedure against an order of acquittal dated 1-10-1956 passed by Shri R.N.N. Sahai, Magistrate, First Class, Purulia.
2. The appellant's case, as made out in his petition of complaint, is that he is a consumer of electrical energy and has an Ice-cream factory and flour mill where he has been using electrical energy since 1950. The respondent Purulia Electric Supply Corporation Ltd., holds a licence under the Indian Electricity Act. 1910 granted by the Government of Bihar for the supply of electrical energy within the limits of Purulia Municipality. In the year 1951, the respondent used to supply electrical energy to all Industrial consumers for running motors far 19 hours a day. In November, 1952 the respondent informed the Industrial consumers that DO power could be supplied on Sundays which days they had set apart for the purpose of maintenance of 200 K.W. set. In March, 1953, on the plea of overhauling the engines, the respondent stopped supply of energy to Industrial consumers for some time. Thereafter the respondent restricted the supply to twelve hours a day. Again in May. 1353 the Resident Engineer of the respondent made a further restriction of supply by reducing it to 6 hours a day. The appellant complains that these frequent and fitful changes and restrictions in the supply of electrical energy, unilateral in character, were in clear contravention of the terms of their licenses and the provisions of Indian Electricity Act. The appellant alleges that on 9-8-1953, the Resident Engineer of the respondent who visited the premises of the appellant during his absence disconnected the supply line to his flour mill. The said Engineer gained access to the Meter Box by falsely representing to the employees of the appellant that he was going to test the meter. It is, further, alleged that on 10-8-1953 one of the Direction of the Respondent Company informed the appellant that as the appellant's motor was found running on a Sunday, his supply was stopped under the authority given to the respondent Company by the Electric Inspector, Bihar.
3. The respondent admitted that the supply of energy was cut off on 9-8-1953, but the allegation about entering the meter box room was false since the energy was cut off from the mains. The defence case further was that the respondent with the approval of the Electric Inspector, Bihar has stopped supplying energy to all Industrial consumers on Sundays as on those days the bigger engine was repaired and the smaller one was used for domestic and essential supplies.
4. The learned Magistrate who tried the case held that the respondent Company had the statutory authority to disconnect an offending power consumer and that since the respondent was duly authorised to restrict the supply of energy it had also the power to stop the supply on Sundays For clean-sing and overhauling purposes. The appellant was found running his motor on a Sunday in contravention of the restriction duly imposed and as such the respondent company was within its right in cutting off the supply. In this view, the learned Magistrate acquitted the respondent. He also held that the disconnection of the supply was not from the meter box but from the mains.
5. Mr. Anil Kumar Sen on behalf of the appellant has raised various points of law which I will deal later on. Mr. Das Gupta who appeared on behalf of the State has supported the order of acquittal. His arguments are mainly the same which Mr. Dutt has advanced on behalf of the respondent in support of the order of acquittal. Before dealing with the points of law, a reference may be made to some facts that arise for decision. The appellant's case is that he was not running the motor on the particular Sunday as the mill was under repair. The learned Magistrate did not believe his evidence nor did he believe that the Resident Engineer disconnected the supply by gaining access to the meter box on any false representation. The evidence in the case fully justifies the findings of the learned Magistrate. I am of the opinion that the Resident Engineer discovered that on a Sunday some energy was being consumed on the western feeder. He further discovered that the flour mill of the appellant was working and this is why he had disconnected the supply. It is highly probable that the Resident Engineer would not have gone out on an expedition to find out whether the energy was being utilised unless he felt sure that some motor was working on the western feeder. His evidence on the point is as follows :
'I find that the Engine was not working property due to heavy load. From the meter I find that some motor is working on the western feeder. The meter of the complt. was in connection with that feeder. I at once came out of the power house. I began to inspect all the motors connected to with western feeder. At last when I came to the complt's mill I found the mill working. I went inside and saw that wheat was being grinded and a heap of wheat was kept for grinding.'
6. Upon the above findings, the question that till remains to he considered is whether the Respondent was within its right, in imposing any restriction as they did in the case, to restrict the supply of energy to a consumer. In order to answer this question, a reference has to be made to some sections of the Indian Electricity Act (IX of 1910) and to the provision of the licence granted to the respondent company. The licence is Exbt. 1 in the case. In paragraph 5 of the license, the licensee Company was to erect a generating station of such height and width as would ensure that the supply of energy shall not in any way be interrupted by floods. Under Clause (ii) of that paragraph the generating plant was to be of such capacity as to make it at all times possible to lay off the largest knit for repairs and to overhaul it without affecting the continuity of supply.
7. Section 21 of the Act provides for restriction on licensees controlling or interfacing with the use of energy.
Sub-sec. (2) provides, 'Subject to the provisions of Sub-section (1), a licensee may, with the previous sanction of me State Government, given after consulting the local authority, where the licensee is not the local authority, make conditions not inconsistent with this Act or with his license or with any rule made under this Act. to regulate his relations with persons who are or intend to become consumers, and may, with the like sanction given after the like consultation, add to or alter or amend any such condition and any conditions made by a licensee without such sanction shall be null and void.'
8. It is clear from this Sub-section (2) that conditions not inconsistent with this Act or with the license could be laid down with the previous sanction of the State Government to regulate the relations with the consumers or to add to or alter or attend any such condition. Finally, it lays down that any such condition made by a licensee without such sanction shall be null and void.
9. Sub-section (1) of Section 21 provides that a licensee shall not be entitled to prescribe, any special form of appliance for utilising energy supplied by him, or save as provided by Section 23, Sub-section (2), or by Section 26, Sub-section (7), in any way to control or interfere with the use of such energy. Mr. Sen relying upon the provisions of that section contends that the alleged restrictions as to supply, as sought to be enforced by the respondent were themselves unlawful being in breach of the Electricity Act and the license.
10. This apparently is a sound argument. Undoubtedly, if the Respondent company were not authorised to impose restrictions on the supply of energy their action in so doing would be illegal.
11. The respondent has put up certain arguments from which this Court has been invited to come to the conclusion that the Respondent Company was fully authorised by the State Government to impose these restrictions. Mr. Dutt has argued that the documents in the case, viz.. Exhibits D.E.F,G, H and I, fully proved that the previous sanction of the State Government was given to make conditions and to add to or alter or amend any condition in the license. Exhibit 'D' which is same as Exhibit 'G' is a letter from the Electric Inspector, Bihar to the Managing Agents, Purulia Electric Supply Corporation Ltd, asking them to disconnect the supply at the time when detected of defaulting motor power consumers if found to violate the stipulated running conditions.
12. It is not the case of the parties here that any stipulated running conditions had been violated. This letter therefore, is of no use. Exhibit 'E', same as Ext. 'H' is another letter dated 17-11-1952 from the Electric Inspector, Bihar, advising the Purulia Electric Supply Company Ltd., that their proposals not to supply power to Industrial Consumers above 5 B.A.P. on Sunday was provisionally approved. A provisional approval is not what is envisaged in Sub-section (2} of Section 21 of the Act. Similarly by Exhibit 'F', same as Exhibit T, the Electrical Inspector, Bihar advised the respondent company to Keep strict vigilance and take, action against offending consumers.
13. Considering the above exhibits, I am unable to come to the conclusion that the previous sanction of the State Government was given to make condition or to add to or alter or amend any condition of the license.
14. Mr. Sen for the appellant has referred to Section 36 and Section 55 of the Act. Section 36 provides for the appointment of the Electric Inspector and Section 55 provides for the delegation of certain functions of the State Government to Electric Inspector. The provisions of Section 55 runs as follows :
'The State Government may, by general or special order authorize the discharge of any of its functions under Section 13 or Section 18 or Section 34. Sub-section (2) or Clause V, Sub-clause (2) or Clause XIII of the Schedule by an Electric Inspector.'
15. It will be observed that Sub-section (2) of Section 21 is nowhere mentioned in Section 55 by which the State Government could authorize the discharge of the functions mentioned in Sub-section (2) of Section 21) to any of the Inspectors. Mr. Dutt has ultimately fallen back upon the doctrine of mens rea. He argues that even if it be found that there Was no proper sanction by the State Government, the respondent Company thought that the sanction of the Electric Inspector was enough for them to impose restriction. It is impossible to accept this view. Absence of sufficient diligence and care which a reasonable person was expected to exercise will not. in my judgment give him any protection for an offence of this land. The case of Srinivas Mall Bairoliya v. The King Emperor, 51 Cal WN 900 : (AIR 1947 PC 135) (A), cannot by any means be stretched to cover a case like this. Summing up the above it comes to this that the appellant was found to use energy on a Sunday on which day under the orders of the Respondent Company such energy could not have been used, that the Respondent Company did issue orders from time to time restricting the use of energy by consumers although such power of restriction was not provided for in the license granted to the Licensee Co., that such restrictions were provisionally sanctioned or acquiesced in by the Electric Inspector, Bihar and finally that the Electric Inspector, Bihar. had no authority to grant such sanction nor was any authority proved to have been delegated to him.
16. I have, therefore, no doubt in my mind that the Respondent had committed an offence, punishable under Section 42(b) of the Act. I have given due consideration to the fact that the learned Magistrate acquitted the respondent and therefore, the Respondent's initial onus of innocence has been reinforced by his acquittal passed in his favour. I cannot, however, find any reason for upholding this order of acquittal on the grounds on which the same is based. The learned Magistrate proceeded upon some reasoning which can never be supported. He has, for example, said that the Chief Electrical Inspector is a senior officer of the State and therefore, it must be presumed that under Section 114 of the Evidence Act when he issued Ext. 'D' which was an official act he did it under proper authority. The question here was one of proper delegation of powers. I am not aware of any presumption by which a delegation of power could be presumed. Even Ext. 'D' itself does not show or purport to show any such delegation. The learned Magistrate's reference to Paragraph VI, second proviso of the Schedule, is also incorrect. That paragraph is as follows :
'Provided, secondly, that the licensee shall be entitled to discontinue such supply--
(a) if the owner or occupier of the property to which the supply is made has not already given security, or if any security given by him has become invalid or insufficient, and such owner or occupier fails to furnish security or to make up the original security to a sufficient amount, as the case may be, within seven days after the service upon him of notice from the licensee requiring him so to do, or,
(b) if the owner or occupier of the property to which the supply is made adopts any appliance, or uses the energy supplied to him by the licensee for any purposes, or deals with it in any manner, so as unduly or improperly to interfere with the efficient supply of energy to any other person by the licensee, or,
(c) if the electric wires, fittings, works and apparatus in such property are not in good order and condition, and are consequently likely to affect injuriously the use of energy by the licensee, or by other persons, or,
(d) if the owner, or occupier makes any alterations of, or additions to any electric wires, fittings, works or apparatus within such property as aforesaid, and does not notify the same to the licensee before the same are connected to the source of supply, with a view to their being examined and tested, (but the licensee shall re-connect the supply with all reasonable speed on the cessation of the act or default or both, as the case may be which entitled him to discontinue it)'.
17. I cannot see how this proviso could be construed to give a statutory authority to disconnect a consumer on the permission given by the Chief Electrical Inspector.
18. Upon a consideration of all the facts and circumstances of the case, I am clearly of the opinion that the learned Magistrate was entirely in error in acquitting the Respondent. It must also be remembered that the interference with supply of the dectricity which is an essential commodity, cannot be lightly brushed aside. In my judgment the order of acquittal is not only bad but has led to a failure of justice.
19. I. therefore, set aside the order of acquittal, convict the Respondent under Section 42(b) of the Act and sentence him to pay a fine of Rs. 250/-.
20. The appeal is allowed accordingly.