# AVTAR SINGH v. STATE OF PUNJAB

- **Citation:** [1965] 1 S.C.R. 103
- **Court:** Supreme Court of India
- **Decided:** 1964-08-24
- **Case number:** Criminal Appeal No. 42 of 1963
- **Bench:** A. K. Sarkar, K. N. Wanchoo, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/avtar-singh-v-state-of-punjab-3286
- **Pages:** 6

## Headnote

Indian Electricity Act (9 of 1910), ss. 39 and 50-0fJence under
s. 39-1/ against the Act-Who can institute prosecution.
The appellant was prosecuted and convicted for theft of electrical energy
under s. 39 of the Indian Electricity Act (9 of 1910).
He contended
that, as his prosecution \vas for an offence against the Act it was incom~
petent, .because, it had not been instituted at the instance of any of lhe
persons mentioned in s. 50 of the Act.
HELD : The conviction of the appellant must be set aside.
The dishonest abstraction of electricity mentioned in s. 39 of the Act
cannot be an offence under the Indian Penal Code for under it alone it is
not an offence; the dishonest abstraction is by that section made a thcit
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 s. 39 must be said to create the
offence.
Since the abstraction is 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.
Further, the object of s. 50 of the Act is to prevent
prosecution for offences against the Act being instituted by any one who
chooses to do so because, the offences can only be proved by men possessing
special qualifications, and there is no reason why it should not have been
intended to apply to dishonest abstraction of energy made an offence of
theft by s. 39.
[l07A-C, E-G].
Emperor v. Vishwanath, I.LR. [1937] All. 102, Dhoolchand v. Stat•
[1956] I.LR. 6 Raj. 856 and In re. P. N. Venkatarama Naicker, A.I.R.
1962 Mad. 497, approved.
F
State v. Magan/al Chuni/al Bogawat, A.I.R. 1956 Born. 354, Tu/si
G
Prasad v. The State, (1964) l Cr. L.J. 472 and Public Prosecutor v. Abdul
Wahab, (1964) LW. 271 (F.B.), overruled.

## Text

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AVTAR SINGH
v.
STATE OF PUNJAB
August 24, 1964
(A. K. SARKAR, K. N. WANCHOO AND RAGHUBAR DAYAL JJ.)
Indian Electricity Act (9 of 1910), ss. 39 and 50-0fJence under
s. 39-1/ against the Act-Who can institute prosecution.
The appellant was prosecuted and convicted for theft of electrical energy
under s. 39 of the Indian Electricity Act (9 of 1910).
He contended
that, as his prosecution \vas for an offence against the Act it was incom~
petent, .because, it had not been instituted at the instance of any of lhe
persons mentioned in s. 50 of the Act.
HELD : The conviction of the appellant must be set aside.
The dishonest abstraction of electricity mentioned in s. 39 of the Act
cannot be an offence under the Indian Penal Code for under it alone it is
not an offence; the dishonest abstraction is by that section made a thcit
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 s. 39 must be said to create the
offence.
Since the abstraction is 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.
Further, the object of s. 50 of the Act is to prevent
prosecution for offences against the Act being instituted by any one who
chooses to do so because, the offences can only be proved by men possessing
special qualifications, and there is no reason why it should not have been
intended to apply to dishonest abstraction of energy made an offence of
theft by s. 39.
[l07A-C, E-G].
Emperor v. Vishwanath, I.LR. [1937] All. 102, Dhoolchand v. Stat•
[1956] I.LR. 6 Raj. 856 and In re. P. N. Venkatarama Naicker, A.I.R.
1962 Mad. 497, approved.
F
State v. Magan/al Chuni/al Bogawat, A.I.R. 1956 Born. 354, Tu/si
G
Prasad v. The State, (1964) l Cr. L.J. 472 and Public Prosecutor v. Abdul
Wahab, (1964) LW. 271 (F.B.), overruled.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
42 of 1963.
Appeal by special leave from the judgment and order dated
November 13, 1962 of the Punjab High Court in Criminal Revision
No. 648 of 1962.
0. P. Rana, for the appellant.
Gopal Singh and R. N. Sachthey, for the respondent.
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The Judgment of the Court was delivered by
Sarkar J,
The appellant was prosecuted for
theft of
electrica.l energy from the Punjab State Electricity Board and
104
SUPREME COURT REPORTS
[I %5] I S.C.R.
1as convicted.
In this appeal the appellant has not sought to
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challenge the finding that he had committed the theft.
He has
only raised a point of law that his conviction was illegal in View
of certain statutory provisions to Which, therefore, we immediately
turn.
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The statute concerned is the Indian Electricity Act, 1910.
Section 39 of the Act, so far as material, provides, "Whoever
dishonestly abstracts, oonsumes or uses any energy shall
be
deemed to have committed theft within the meaning of the Indian
Pen.al Code".
It is not in dispute that the appellant had committed the theft mentioned in this section.
Section 50 of the
Act provides, "No prosecution shall be instituted against
any
person for any offence against the Act . . . . except at the instance
of the Goverriment or an Electrical Inspector, or of a person
aggrieved by the same." The appellant's contention is that his
prosecution was for an offence against the Act and it was incompetent as it had not been established that it had been instituted
at the instance of any of the persons mentioned in s. 50.
The
Courts below held that the prosecution was not for an offence
against the Act and in that view . of the matter held
that s. 50 did not apply.
On the question whether it had been
instituted by a per>an mentioned in s. 50, the prosecution gave
no materials for a decision.
The statute concerned. is the Indian Electricty Act, 1910.
t~e Act or not has come up before the High Courts <;m several
occasions and the decisions disclose a diversity of opinion.
It
will be convenient _to refer to these opinions at this stage.
In
Stale v. Magan/al Chunilal Bogwat('), Tutsi Prasad
v.
The
State(') and Public Prosecutor v. Abdul Wahab('). it was held
that the theft was not an offence against the Act while the contrary view was taken in Emperor v. Vishwanath('). Dhoolchand
v. State(') and In re P. N. Venkatarama Naicker(').
In' our opinion, the view expressed by the Allahabad High
Court in Emperor v. Vishwanath(')
i~ the· correct one.
The
matter was there put in these words: "The learned Sessions Judge
was of opinion that· the offence was not an offence against the
Act because it was one punishable under the provisions of s. 379
of the Indian Penal Code.
We think that this would not have
been an offence under section 3 79 of the Indian Penal Code if it
had not been for the provisions of section 39 of the Indian Electricity Act.
It was, therefore, an offence which was created by
(I) A.l.R. 1956 Born. 354.
(3) (1964) L.W. Madras 271. (F.B.)
(5) (1956) 1.l..R. 6 Raj. 856.
(2) (1964) I Cr. l..J. 4n
(4) I.LR. 11937) All. lil2.
(6) A.LR. 962 T<l\4d. 497.
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AVTAR v. STATE (Sarkar J.)
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section 50 to apply to an offence of this nature."
We are in
complete agreement with this statement of the law.
We may now set out the reasons on which the contrary view
was taken and state why we are unable to accept them.
In
B State v; Magan/al Chuni/al B9gawat(') it was stated that s. 39
of the Electricity Act only extended the operation of s. 379 (s.
378?) of the Penal Code and Vishwanath's case(2 ) was wrongly
. decided as s. 39 expressly made the dishonest abstraction of
electrical energy an offence
punishable
under the Code.
In
Tutsi Prasad v. The State(') an additional reason in support of
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the same view was given and that was that s. 39 could not create
an offence as it did not provide for any punishment.
The case
of Public Prosecutor v. Abdul Wahab(') seems to have proceeded on the basis that s. 39 created a fiction by which something
which was not a theft within the Indian Penal ·Code ~ecame one
under it and so the offence was really under the Code.
It was
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also stated that the purpose of the fiction was merely to create
an offence but 'as the punishment for it was provided only under
the Indian Penal Code, the offence really became one under the
latter statute.
With regard to the first reason that s. 39 of the Act extended
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the operation of s. 378 of the Code, it seems to us beyond question
thats. 39 did not extends. 378 in the sense of amending it.or in
any way altering the language used in .it.
Section 378, read by
itself even after the enactment of s. 39, would not include a theft
of electricity for electricity is not considered to be movable
property.
The only way in which it. can be said that
s.
39
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extended s. 378 is by stating that it made something which was
not a theft under s. 378, a theft within the meaning of that section.
It follows that if s. 39 did so, it created the offence itself
and s. 378 did not do so.
In this view of the matter we do not
think it possible to say that the thing so made a theft and an
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offence, became one by virtue of s. 378.
Next as to s. 39 not providing for a punishment, apart from
the question whether an offence can be created by a statutory
provision without that provision itself providing for punishment,
on which we express no opinion, we think it clear that s. 39 must
be read as providing for a punishment. · First it is dear to us
that the Act contemplated it as doing so, for ss. 48 and 49
(1) A.J.R. 1956 Bom. 354.
(3) (1964) I Cr. L.J. 472.
(2) I.LR. (1937)
All. 102.
(4) (1964) L.W. (Madras) 271. (F.B.)
106
SUPREME COURT REPORTS
[1965] I S.CR.
speak of penalties imposed by s. 39 and acts punishable under it.
In Public Prosecutor v. Abdul W ahab ( 1 ) it was stated that the
language used in ss. 48 and 49 cannot be regarded as strictly
accurate.
Such an interpretation is not permitted for "the words
of an Act of Parliament must be construed so as to give sensible
meaning to them."
The words ought to be construed ut res magis
valeat quam pereat: Curtis v. Stovin('). And we find no difficulty
in taking the view that s. 39 docs provide for a punishment.
It
says that the dishonest abstraction of energy shall be deemed to
be theft within the meaning of the Indian Penal Code.
The
section, therefore, makes something which was not a tileft within
that Code, a theft within it, for if the abstraction was a theft
within the Code, the section would be unnecessary.
It follows
from this that the section also makes that theft punishable in the
manner provided in it, for if the act is deemed to be a theft within the Code it must be so deemed for all purposes of it, including
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the purpose of incurring the punishment.
In State v. Magan/a/
Chunilal Bogawat( 8 ) it was also stated that the offence of abstracD
lion of energy is by s. 39 expressly made punishable under s. 379.
We find no such express provision in s. 39. Even if there was
such a ~provision in the Act, the liability to punishment woulc
arise not under the Code but really because of s. 39.
It will be
impossible to hold that without s. 39 there is any liability
to
punishment under the Code for any abstraction
of
electrical
energy.
In Public Prosecutor v. Abdul Wahab(') it was observed that since s. 39 created a theft within the meaning of the
Indian Penal Code by means of a fiction, it followed that as the
fiction could not be departed from, the offence so fictionally
created was one under the Code.
We are unable to appreciate
thi~ reasoning. If a provision says that something which is not
an offence within the meaning of another statute is to be deemed
to be such, the offence is, in our view, created by the statute
which raises the fiction and not by the statute within which it is
· to be deemed by that fiction to be included. If the other view was
correct, it would have to be held that the offence was one within
the last mentioned statute proprio vigore and this clearly it is not.
At this stage we might point 0ut that in Abdul Wahab's(') case
it was stated that "It can be accepted that s. 39 of the Act creates
an offence." It seems to us that if so much is conceded, it is
impossible to say that s. 50 would not apply to a prosecution in
respect of it for it applies to every prosecution "for any offence
against this Act".
(i)(l964) L.W. (Madras)-271. (P.B.)
(2) (1889) 22 Q.B.D. 513, 517.
(3) A.l.R. 1956 Born. 354.
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lt.VTAI v. STA.TB (Sarkar /.)
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To pllt it shortly, dishonest ab9traction of electricity mentiooed in s. 39 cannot be an offence under the Code for um:ler
it alone it is not an offence; the dishonest abstraction is by s. 39
made a theft within the meaning of the Code, that is, an offence
of the 'fariety d~bed in the Code as theft.
As the offence is
created by raising a fiction, the section which raises the fiction,
B namely s. 3'9 of the Act, must be said to create the offence. Since
the abstraction is by s. 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
f9r under -it abstraction of energy is not an offence at all.
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We may now refer to certain general considerations also leading to the view which we have taken.
First, we find that the
heading which governs ss. 39 to 50 of the Act is KCriminal
Offences and Procedure". Obviously, therefore, the legislature
thought that s. 39 created an o1fence.
We have also said that SS.
D 48 and 49 iadicatc that ill the legislature's cont~tion s. 39
provided for a punishment.
That section must, therefore, also
have been intended to create an offence to which the punishment
was to attach. The word 'offence' is not defined · in the Act.
Since for the reasons earlier mentioned, in the legislature's view
s. 3 9 created an offence, it has to be held, that that was one of
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the otfences to which s. 50 was intended to apply.
Lastly, it
seems to us that the object of s. 50 is to prevent prosecution for
offences against the Act being instituted by anyone who chooses
to do so because the offences can be proved by men possessing
special qualifications.
That is why it is left only to the aiuthorities
concerned with the offence and the persons aggrieved by it to
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initiate the prosecution.
There is no dispute that s. 50 would
apply to the offences mentioned in ss. 40 to 47.
Now it seems
to us that if we are right in o~r view about the object of s. 50,
in principle it would be impossible to make any distinction between s. 39 and any of the sections from s. 40 to s. 47. ·Thus
s. 40 makes it an offence to . maliciously callSe · energy to lie
G wasted.
If. in respect of waste of energy s. 50 is to have application, there is no reason why it should not have been intended
to apply to dishonest abstraction of energy made a theft by s.
39. For all these reasons we think that the present is a case of
an offence against the Act and the prosecution in respect of that
offence would be incompetent unless it was instituted at the insH
tance of a person named in s. 50.
Learned counsel for the respondent also sought to contend
that the present prosecution was at the instance of a person
108
SUPREME COURT REPORTS
(1965) I S.C.R.
aggrieved by the theft.
We do not think we should allow him
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at this stage to go into that question.
The appellant has all
along been contending that his prosecution was ·bad ~use it
was not at the instance of the Government or an Electrical Inspector or a person aggrieved by the theft.
It was clearly for
the respondent if it was minded to go into that question,
to
establish that the prosecution had been instituted at the instance
of a person aggrieved as it now seeks to do. It has never been
disputed at any earlier stage that the prosecution had· not been
at the instance of one of the persons mentioned. in s. 50.
The
onus of proving that fact was clearly on the respondent. It is
a question of fact and we have no material on the record by
which we can decide it.
We, therefore, think that this
case
must be decided on the basis, as it was in the courts bclow,
that the prosecution would be incompetent under s. 50 if it was
in respect of an offence against the Act.
We have found that
it was in respect of such an offence.
The result is that the appeal is allowed and the conviction
of the appellant is set aside.
Appeal allowed.
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