TMI Blog1963 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ai in Tanjore Dt. In connection with the marriage of his daughter, which took place on 7-9-1960, he put up a pendal in front of his house, which occupied the entire breadth of the street, extending in its length to the neighbouring houses ore either side. With a view to have illuminations to the Pandal, Abdul Wahab secured from the Kumbakonam Electric Supply Corporation, the licensee under the Act for the area in question, a temporary connection for the supply of electrical energy. On 9-9-1960, when presumably, the celebrations in connection with the marriage also continued, the Chief Engineer of the Corporation, who made a surprise inspection of the pandal, found that the electricity for the illuminations must have been obtained surreptitiously by tampering with the meters in the houses adjacent and opposite to that of the first respondent. He also found some evidence of such illicit tapping of electricity from those house. He estimated that the quantum of current consumed by the lights in the pandal must have been more than what the temporary meter indicated. The Chief Engineer lodged a complaint with the Sub-Magistrate of Police at Papanasam, who, after investigation, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule, licence or order thereunder, except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same . It will be seen from the provisions of this section, that the procedure enjoined by it, is only with respect to offences against the Electricity Act; obviously, therefore, prosecutions laid in respect of offences not against the Act but falling under some other statute, need not be at the instance of the Government, or an electrical inspector or a person aggrieved by the improper abstraction of energy. But at the same time it must be realised that an illegal abstraction, consumption or use of electrical energy cannot be the same as the theft of a chattel. Section 378, I. P. C. which defines theft, cannot standing by itself! apply to it. Therefore Section 39 of the Act creates a fiction, by which a person who dishonestly abstracts, consumes or uses electricity, is regarded as committing theft within the meaning of Section 378 I. P. C. As was pointed out in Y. M. I. A. Madras v. J. C. T. Officer, Madras, 76 Mad LW 704 at D. 710 : : ...........thing can be deemed to be something only, if it is not in reality that thing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated: When by statute certain acts are deemed to be crimes of a particular nature, there are such crimes and not a semblance of it, nor a metre fanciful approximation to or designation of the offence. It would follow from the above, that within the field of operation of a statutory fiction, it will have to be deemed to be a reality and not anything else. The following of quoted passage in the judgment of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 will make that point clear: If you are bidden to treat an imaginary state of affairs as real you must surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it......... From the foregoing, it will follow that although theft of electricity will not come within' the scope of Section 378 I. P. C., yet, by virtue of the fiction created by Section 39 of the Act, the improper act specified in that section should be regarded as 'theft' within the meaning of the Indian Penal Code and as a consequence the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibitions, the common law or the received rules of construction import into them the appropriate sanction, i.e., where the disobedience affects the 'public interest, liability to indictment for misdemeanour.......... Therefore, statutory offence of theft created Under Section 39 of the Act cannot be regarded as one against the Act, I but one under: the Indian Penal Code; the Act, as we stated. has nowhere prohibited the improper use of electricity or provided any punishment itself for such improper user. 5. The learned Advocate General with his characteristic fairness has, however, invited our attention to certain features in the provisions of the Act as indicating an intention on We part of the legislature to treat an infraction coming Under Section 39 of the Act as an offence under the Act itself. He referred in this connection to the heading of Sections 39 to 50. It speaks of Criminal Offence and Procedure . Secondly, he invited out attention to Sections 48 and 49 of the Act, which treat Section 39 as imposing a penalty or punishment. As We have pointed out earlier, there is nothing in Section 39 imposing, by itself, any punishment or penalty. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of textual amendment to another Act, as not affecting in any way the Amended Act. We are by no means satisfied that if Section 39 were to be regarded as amending Section 373 I. P. C. the repeal of it will not have the corresponding effect of repealing the amendment thereby effected to the Indian Penal Code. But it is not necessary to pursue this matter in the view we are inclined to take of the nature of the provisions contained in Section 39 of the Act. 8. Coming to the second head, it is argued that Section 39 cannot be regarded as incorporated in the Indian Penal Code as the language of incorporation is singularly absent in this case. In this connection the learned Advocate General referred us to a number of decisions, namely, R. v. Merionethshire, (1844) 115 ER 132 : 6 QB 343; R V. Brecon, (1849) 117 ER 665 : 15 QB 813; In re. Recherry's Settled Estate, (1862) 31 LJ Ch 351 and Ex parte St. Sepulchre, (1884) 33 LJ Ch 372, which held that words like as fully and effectually as if the same and every part thereof were herein repeated and re-enacted or all the clauses and provisions of this Act, save in so far as they shall be expressly varied or excepted by any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exchange Regulation Act, 1952' could be incorporated, but there was only a reference to the Sea Customs Act, which meant that all relevant provisions therein including the amendment subsequently introduced into that Act would also be deemed as part of the Foreign Exchange: Regulation Act. 10. The learned Advocate General has placed considerable reliance upon this decision to show that Section 39 of the Act cannot be said to have either incorporated Section 378, I. P. C. or referred to it. That may be so. But it does not follow therefrom that Section 39 of the Act should be regarded, notwithstanding the absence of necessary words therein, as itself constituting an offence. In other words, we are not prepared to accept that the categories of cases mentioned by the learned Advocate General as exhaustive of the matter, so that if a particular enactment which adopts an earlier enactment does not fall into the first three categories, it should necessarily fall under the fourth category. In this view, we are unable to agree with the learned Advocate General that Section 39 of the Act falls into the fourth or residuary category of the cases formulated by him, and that therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code and not one against the Act . 11. We have next to deal with the contention of Mr. R. Balasubramania Aiyar of the Tanjore Bar, who appeared for the first respondent, namely, that as Section 39 of the Act merely creates a fiction, it cannot be the same as Section 379, I. P. C, which is concerned only with theft properly so defined, and, therefore, the former provision should be regarded as itself creating the offence. It can be accepted that Section 39 of the Act creates an offence, namely, what has been called a statutory theft. But the question before us is not so much as whether that the provision creates the offence, but whether a dishonest abstraction of electricity is a contravention of the Indian Electricity Act, or only of the Indian Penal Code. We have already pointed out that the effect of the fiction created by Section 39 of the Act will be to treat the offence as one of theft. 12. Learned counsel then referred us to the decision in Vishwanath v. Emperor, AIR 1936 All 742, where it was held that an offence Under Section 39 of the Act was not an offence Under Section 379, I. P. C. but one create by the Electricity Act and that the conditions impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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