Avtar Singh vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 42 of 1963

Decision Date: 24 August 1964

Coram: A.K. Sarkar, K.N. Wanchoo, Raghubar Dayal

In this matter, the Supreme Court recorded that the case titled Avtar Singh versus State of Punjab was decided on 24 August 1964. The judgment was authored by Justice A K Sarkar, who sat with Justices K N Wanchoo and Raghubar Dayal. The official citation of the decision is reported as 1965 AIR 666 and 1965 SCR (1) 103. The dispute arose under the Indian Electricity Act of 1910, specifically sections 39 and 50. Section 39 creates an offence of “dishonest abstraction, consumption or use of any energy,” treating such conduct as theft within the meaning of the Indian Penal Code. Section 50 limits the institution of prosecutions for offences under the Act to the Government, an Electrical Inspector, or a person who has been aggrieved by the same. The appellant, Avtar Singh, had been prosecuted and convicted for theft of electrical energy pursuant to section 39. He argued that because his prosecution was for an offence against the Act, it was invalid unless it had been instituted by one of the persons named in section 50. The Court held that the conviction must be set aside. It explained that the dishonest abstraction of electricity described in section 39 does not constitute an offence under the Penal Code on its own; rather, the provision creates a fictional offence of theft that must be treated as such for purposes of punishment. Consequently, the punishment prescribed for theft in the Penal Code applies, even though the abstraction of energy is not an offence under the Code itself. The Court further observed that the purpose of section 50 is to prevent prosecutions from being initiated by anyone lacking the special qualifications necessary to prove the offences, and that this purpose extends to the theft of electricity fashioned by section 39. The Court relied upon several earlier decisions, including Emperor v Vishwanath (I.L.R. 1937 All 102), Dhoolchand v State (1956 I.L.R. 6 Raj 856), In re P N Venkatarama Naicker (1962 AIR Mad 497), State v Maganlal Chunilal Bogawat (1956 AIR Bom 354), Tulsi Prasad v State (1964 1 Cr L.J. 472) and Public Prosecutor v Abdul Wahab (1964 L.W. 271 F.B.), the latter of which was overruled. The judgment was delivered by Justice Sarkar and concerned Criminal Appeal No 42 of 1963, which arose by special leave from a Punjab High Court order dated 1 November 1962 in Criminal Revision No 648 of 1962.

The appellant had been tried and convicted by the State Electricity Board for theft of electrical energy, and in the present appeal he did not dispute the factual finding that he had committed the theft. Instead, he limited his challenge to a pure point of law, contending that his conviction was illegal because of the operation of certain statutory provisions, and the Court therefore turned directly to those provisions. The statute in question was the Indian Electricity Act, 1910. Section 39 of that Act, insofar as it was relevant, declared that “Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code.” It was not contested that the appellant’s conduct fell within the description of theft contained in that section. Section 50 of the same Act, however, stipulated that “No prosecution shall be instituted against any person for any offence against the Act … except at the instance of the Government or an Electrical Inspector, or of a person aggrieved by the same.” The appellant argued that the prosecution was for an offence against the Act and therefore illegal, because it had not been shown that the prosecution had been launched at the instance of any of the persons named in Section 50. The trial courts had held that the prosecution was not for an offence against the Act and, on that basis, concluded that Section 50 was inapplicable. Moreover, when questioned whether the prosecution had indeed been initiated by a person listed in Section 50, the prosecution offered no material upon which a decision could be made. The question of whether the offence arose under the Act had previously arisen before various High Courts, and those decisions revealed a split of opinion. For convenience, the Court referred to those authorities. In State v. Maganlal Chunilal Bogwat (1), Tulsi Prasad v. The State (2) and Public Prosecutor v. Abdul Wahab (3), the courts held that the theft was not an offence against the Act. By contrast, the opposite view was taken in Emperor v. Vishwanath (4), Dhoolchand v. State (5) and In re P. N. Venkatarama Naicker (6). The Court expressed the opinion that the view endorsed by the Allahabad High Court in Emperor v. Vishwanath (4) was the correct one. That court had explained the point in the following 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 section 379 of the Indian Penal Code. We think that this would not have been an offence under section 379 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 … (1) A.I.R. 1956 Bom. 354. (2) (1964) 1 Cr. L.J. 47. (3) (1964) L.W. Madras 271 (F.B.). (4) I.L.R. (1937) All. 102. (5) (1956) I.L.R. 6 Ra A.I.R. 1962 Mad. 497. … that section and we are of opinion that the legislature intended section 50 to apply to an offence of”

In this case, the Court was in complete agreement with the earlier statement of law that described offences of this nature. The Court then set out the reasons that had been advanced for the contrary view and explained why those reasons could not be accepted. In State v. Maganlal Chunilal Bogawat (1) it was asserted that section 39 of the Electricity Act merely extended the operation of section 379 (or possibly section 378) of the Penal Code and that the decision in Vishwanath’s case (2) was erroneous because section 39 was said to expressly make the dishonest abstraction of electrical energy an offence punishable under the Code. In Tulsi Prasad v. The State (3) an additional argument supporting the same position was offered, namely that section 39 could not create an offence because it did not provide any punishment. The case of Public Prosecutor v. Abdul Wahab (4) appeared to rely on the proposition that section 39 fabricated a legal fiction whereby conduct that was not a theft under the Indian Penal Code was treated as a theft, thereby rendering the offence as one that genuinely fell within the Code. It was further said that the purpose of this fiction was solely to create an offence, but since the punishment for that offence was stipulated only in the Indian Penal Code, the offence ultimately became one under that later statute. Regarding the first contention that section 39 extended the operation of section 378 of the Code, the Court found it beyond doubt that section 39 did not amend or otherwise alter the language of section 378. Even when read after the enactment of section 39, section 378 on its own would not encompass theft of electricity because electricity is not regarded as movable property. The only manner in which section 39 could be said to extend section 378 was by converting conduct that was not a theft under section 378 into a theft within the meaning of that section. Consequently, if section 39 effected such a conversion, it itself created the offence and section 378 did not. In this view, it was impossible to say that the conduct became a theft and an offence merely by virtue of section 378. Turning to the argument that section 39 did not provide for a punishment, the Court noted that, apart from the unresolved question of whether a statutory provision can create an offence without itself specifying a penalty—a question on which the Court expressed no opinion—it was clear that section 39 must be interpreted as providing a punishment. Firstly, the Act itself indicated this intention, as sections 48 and 49 (1) A.I.R. 1956 Bom. 354. (2) I.L.R. (1937) All. 102. (3) (1964) 1 Cr. L.J. 472. (4) (1964) L.W. (Madras) 271. (F.B.) refer to penalties imposed by section 39 and to acts punishable under it. In Public Prosecutor v. Abdul Wahab (1) it was stated

In this case, the Court observed that the language employed in sections 48 and 49 of the Act could not be treated as strictly accurate. The Court explained that such a construal is not allowed because the words of a parliamentary enactment must be interpreted so as to give them a sensible meaning. The Court quoted the maxim that the words should be construed “ut res magis valeat quam pereat,” citing Curtis v. Stovin (2). Accordingly, the Court found no difficulty in accepting that section 39 does indeed provide for a punishment. Section 39 states that the dishonest abstraction of energy shall be deemed to be theft within the meaning of the Indian Penal Code. Consequently, the provision transforms conduct that would not otherwise be classified as theft under the Code into theft, for if the abstraction were already theft the provision would be unnecessary. From this it follows that the provision also makes that theft punishable in the manner prescribed in the provision, because once the conduct is deemed theft under the Code, it must be treated as such for all purposes, including the imposition of the prescribed penalty. The Court noted that in State v. Maganlal Chunilal Bagawat (3) the offence of abstraction of energy was held to be expressly punishable under section 379, but the Court observed that there is no such express provision in section 39. Even if such a provision existed, the liability for punishment would arise not from the Code but from section 39 itself. The Court held that without section 39 there would be no liability for punishment under the Code for any abstraction of electrical energy. Referring to Public Prosecutor v. Abdul Wahab (1), the Court observed that the earlier decision said that because section 39 created a theft within the meaning of the Indian Penal Code by means of a fiction, the offence so created was one under the Code. The Court said it could not accept that reasoning. The Court explained that when a provision declares that something which is not an offence under another statute shall be deemed such, the offence is created by the statute that raises the fiction, not by the statute in which the fiction is placed. If the opposite view were correct, the offence would have to be said to exist in the latter statute “proprio vigore,” which the Court said it was not. The Court further pointed out that Abdul Wahab’s case had stated that section 39 creates an offence, and the Court argued that if that concession is accepted, it would be impossible to say that section 50 would not apply to a prosecution for that offence, because section 50 applies to every prosecution for any offence against the Act. In short, dishonest abstraction of electricity mentioned in section 39 cannot be an offence under the Code alone; it becomes theft within the meaning of the Code only because section 39 creates the offence through a fictional inclusion, and the punishment follows from that creation.

In this case, the Court observed that the act of abstracting electricity described in section 39 could not itself be an offence under the Penal Code, because the Code did not define such abstraction as an offence. The Court explained that, by virtue of section 39, the dishonest abstraction was deemed to be theft within the meaning of the Penal Code, and therefore fell under the category of theft recognized by that Code. Since the offence was created by the fiction introduced in section 39, the Court held that the provision that created the fiction—namely section 39 of the Act—must be said to create the offence. Consequently, because the abstraction was deemed an offence under the Code by reference to section 39, the Court said that the fiction must be followed to its logical conclusion, and the punishment applicable under the Code for theft must apply to the offence created by section 39. The Court clarified that the punishment did not arise under the Code itself, because the Code did not treat the abstraction of energy as an offence on its own.

The Court then turned to broader considerations supporting the view it had taken. First, it noted that the heading that covered sections 39 to 50 of the Act was “Criminal Offences and Procedure,” which indicated that the legislature had intended section 39 to create an offence. The Court further pointed out that sections 48 and 49 showed that the legislature, in its contemplation, had provided for a punishment in relation to section 39. Accordingly, the Court concluded that section 39 must have been intended to create an offence to which a punishment would attach. The Court observed that the word “offence” was not defined in the Act, but, for the reasons already mentioned, the legislature’s view was that section 39 created an offence, and thus it was one of the offences to which section 50 was meant to apply.

Finally, the Court considered the purpose of section 50. It held that the object of section 50 was to prevent any person from instituting a prosecution for offences against the Act unless that person possessed the special qualifications required, leaving the initiation of prosecution to the authorities concerned with the offence and to persons aggrieved by it. The Court affirmed that there was no dispute that section 50 applied to the offences listed in sections 40 to 47. Given its view of the purpose of section 50, the Court reasoned that it would be impossible to distinguish between section 39 and the other sections from 40 to 47. For example, section 40 made it an offence to maliciously cause energy to be wasted; therefore, if section 50 applied to waste of energy, there was no reason it should not also apply to dishonest abstraction of energy that was deemed theft by section 39. On all these grounds, the Court concluded that the present matter constituted an offence against the Act and that a prosecution for that offence would be incompetent unless it was instituted at the instance of a person named in section 50.

The respondent also argued that the present prosecution had been launched at the instance of a person aggrieved by the alleged theft. The Court determined that it would not permit the respondent to pursue that issue at this stage of the proceedings. The appellant had consistently maintained that the prosecution was invalid because it had not been instituted at the instance of the Government, an Electrical Inspector, or any person aggrieved by the theft. If the respondent wished to examine that contention, it was incumbent upon the respondent to demonstrate that the prosecution had indeed been instituted at the instance of a person aggrieved, as it now seeks to establish. No earlier stage of the litigation contained any dispute that the prosecution had not been launched at the instance of any of the persons listed in section fifty. The burden of proving that the prosecution satisfied the requirement of section fifty therefore rested on the respondent in this case. That issue was a factual one, and the record did not contain material enabling the Court to determine it. Because the record was silent on any evidence demonstrating the required plaintiff’s standing, the Court could not satisfy the factual prerequisite for a valid prosecution under section fifty. Consequently, the Court concluded that the appeal must be decided on the same basis lower courts had applied, namely that the prosecution would be incompetent under section fifty if it concerned an offence against the Act. The Court found that the present proceeding indeed involved an offence constituted under the provisions governed by the Act. As a result, the Court allowed the appeal, set aside the appellant’s conviction, and ordered that the appeal be allowed.