Public Prosecutor vs Abdul Wahab and Others

S. Ramachandra Iyer, C.J.—This reference, which has been made by Kailasam J: arises out of an appeal filed by the Public Prosecutor

against an order passed by the Sub-Magistrate, Papanasam, acquitting respondents 1 to 6 herein of certain offences connected with and relating to

an alleged improper abstraction and use of electrical energy. The question that falls to tie decided on this reference can he formulated thus:

Whether a dishonest abstraction, consumption and or use of electrical energy, which is statutorily made a theft by virtue of Section 39 of the

Indian Electricity Act, will amount to an offence against that Act, or one under; Section 379 of the I. P. C.

To appreciate the significance of the question, and indeed1 to examine it, it will be necessary first to briefly set out the history, of the proceedings,

which have led up to this reference. Abdul Wahab, the first respondent: before us, is a resident of Pandaravadai 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, laid three charges against the respondents, respondents 2 to 5 being the owners of the opposite and

adjacent houses of the first respondent and respondent 6 being an operative. The first charge was u/s 379 I. P. C. read with Section 39 of the

Indian Electricity Act 4which will hereafter be referred to as the Act) for stealing electricity. The two subsequent charges were under ''Secs. 44(c)

and 44(d) of the Act.

The learned Sub Magistrate acquitted the respondents. The State has filed this appeal against the order of acquittal.

In the appeal, a preliminary question, one that has given occasion to this reference, arose as to the maintainability of the prosecution

commenced, as it had been done by the police, the contention on behalf of the respondents being that by reason of Section 50 of the Act, a

prosecution for offences against the enactment could be laid only at the instance of the Government, or an electrical inspector, or of a person

aggrieved by such offence. Kailasam J was not inclined to accept that contention in regard to the first head of the charges, as in the learned Judge''s

opinion, the offence was one under the Indian Penal Coda, and not under the Indian Electricity Act. But a different view had been axpressed by

Sadasivam J. in In Re: P.N. Venkatarama Naicker, . The learned Judge, has therefore, referred this matter for decision by a Bench. Subsequently,

the Bench before which the matter came up for hearing, has referred this to the Full Bench.

For a due consideration of the point stated out at the beginning, it will be necessary to set out the two relevant sections of the Act, namely,

Sections 39 and 50.

Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal

Code; and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction."" This section consists of

two parts. The first part defines when there could be a theft of energy. The second part makes the existence of artificial means for illicit abstraction

prima facie evidence of a dishonest intent. We are concerned in this reference only with the first part of the section.

No prosecution shall be instituted against any person for any offence against this Act or any 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 Young Men''s Indian

Association (Regd.) Vs. Jt. Commercial Tax Officer, Harbour Dn. II, :

...........thing can be deemed to be something only, if it is not in reality that thing.

In other words, it is because the theft of electrical energy cannot be theft as defined in the Indian Penal Code, there is need for creating a fiction u/s

39 of the Act. Fictions are often resorted to under the law either for the purpose1 of improving the law, or to further the interests of justice; for

example, a child in the womb of his mother is regarded as in existence in the matter of his rights. But such fictions have their own limits. There is

however no such limit for a statutory fiction so long as the legislature enacting it, is competent to legislate on the matter. A fiction is a favourite

device of the legislature to achieve the object of the statute. Therefore, even though one thing is not the same as another, the legislature, for the

purpose of effectuating its object might create a fiction that the former shall be deemed to be the latter. In such a case, it will not be open to the

court to treat things, though distinct in themselves, differently, or, to put it in other words to contradict the fiction; for to do so, would be to defeat

the very purpose for which the fiction had been created. In Emperor v. Kashia Antoo, 10 Bom LR 26, Chandavarkar J. is reported while

considering the words ""shall be deemed"" to have observed that the words when used by a legislature means,

when one thing is not the same as another thing, but the legislature says that it shall be deemed to be the same thing, it creates a legal fiction"" and in

such a case

the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to...............

The learned Judge then referred to the decision in Mostyn v. Fabrigas, 1775 1 Cowp. 161 for the proposition that fictions created by law should

never be contradicted so as to defeat the ends for which they were invested. The same rule has been enunciated by Bhagwati J. in The Bengal

Immunity Company Limited Vs. The State of Bihar and Others, here it was stated:

A legal fiction presupposes the correctness of the state of facts on which it is based and all the consequences which flow from that state of facts

have got to be worked out to their logical extent. But due regard must be had in this behalf to the purpose for which the legal fiction has been

created.

In Bover''s Law Dictionary, while referring to the meaning of the word ""deem"" it 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 machinery provided for its punishment under that Code will be attracted. In AIR 1938 130 (Privy Council) Lord

Wright, while considering the nature of an offence u/s 39 of the Act observed-

That offence was clearly established, because the user of electric current without the intention of paying, is beyond question a dishonest user. That

is all that is required u/s 39 ''which creates a statutory theft'' sufficiently established against whoever dishonestly abstracts, consumes or uses the

energy. The technical rules applicable to proving the theft of a chattel do not apply to proof of this special offence"" (italics (here in '' '') are ours

The question for consideration has, therefore, been narrowed down to this, namely, whether theft of electricity is one against the Act or against the

ordinary criminal law of the land. It will be noticed that Section 39 of the Act beyond treating it as a theft, says no more; it does not itself prohibit it

or provide for any penalty for it. Section 379 I. P. C. which provides for punishment in respect of theft, is not even referred to or incorporated in

Section 39. Prima facie, therefore, the first part of Section 39 must be hold to have exhausted itself after creating the fiction. in other words, the

purpose of the fiction is merely to create an offence that did not previously exist Under the Indian Penal Code. It is somewhat significant that while

Sections 40 to 44 of the Act provide for punishments for transgressions of certain rules or obligations on the; part of consumers and others, there is

no sanction provided in Section 39 which occurs in the same chapter. This is presumably for the reason that on a dishonest abstraction etc., of

electricity being made to constitute the offence of theft, there is no further need for the legislature to provide a specific sanction for it, as the

ordinary law of the land has provided a penalty therefore. That this is a well-recognised mode of providing for punishment of offences created by a

statute will be seen from Craies on Statute Law, 5th Edn. where at p. 497 it is stated :

Most, if not all, Acts containing a command or prohibition contain also some express penalty or sanction for disobedience to the command or

prohibition which they, contain, and where they are silent as to the sanction for disobedience, to their commands or 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 u/s 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.

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 u/s 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. Therefore, the reference to that section as imposing a penalty in Sections 48 and 49

cannot be regarded as strictly accurate. In one sense, in so far as the combined reading of Section 39 of the Act with Section 378 would entail

punishments u/s 379 I. P. C. it can even be said that Section 39 imposes a penalty. But that is not the same thing as saying that a dishonest

abstraction of electricity is an offence against Section 39, albeit it might be an infraction under that section.

The learned Advocate General however urged that Section 39 of the Act should be construed as creating are offence in respect of which there

is a reference to Section 378 I. P. C. only for the purpose of prosecution and punishment. The obvious criticism to this argument is that Section 39

is merely declaratory; it does neither incorporate in itself Section 379 I. P. C nor does it even refer to it. Section 378 I. P. C. referred to in Section

39 of the Act merely defines the term ""theft"".

We shall, however, consider the argument apart from that criticism. It has been argued that a case like the present can be regarded as falling in

one of the four categories mentioned below, namely-

Doos Section 39 of the Act amend Section 378, I. P. C.?

Can Section 39 be regarded as having been incorporated in Section 378, I. P. C. or vice versa?

Cam Section 39 be regarded as referring to Section 378, I. P. C.?

If it is neither of the above three, can not Section 39 be regarded as itself creating am offence, the reference to Section 378 I. P. C. being

merely to indicate! the manner and method of prosecution for its infringement?

Taking up the first of the four alternatives, it is argued that Section 39 by no melans can be regarded as effectuating an amendment of to Section

378, I. P. C. because: (i) it does not purport to do so and (ii) it cannot be called as either an omission, insertion or substitution of anything

contained in Set. 378 I. P., C. By way of example, it is said, that if Section 39 of the Act were to be repealed, it cannot be said that the

amendment effected will not also stand repealed and that therefore the characteristic of amending legislation as referred to in Section 6-A of the

General Clauses Act will be absent in the case. The provision, Section 6-A, makes the repeal of an Act, which had the effect 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.

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 such Act, shall apply to the undertaking authorised thereby and shall form part of such Act and be construed together therewith"" as indicating

an incorporation of one statute into another. The effect of Incorporation in such a case will be as if the latter Act actually contained the clauses

referred to in the former Act. While we agree with the learned Advocate General that there are no sufficient words in Section 39 of the Act to

warrant an inference that either Section 39 has been incorporated into Section 378 I. P. C. or vice versa, we are at the same time not prepared to

hold that it is only by the: use of the words stated above that an incorporation of one statute into another can be effectuated.

Proceeding to the third category, we are of opinion that Section 39 of the Act cannot be held to have brought in Section 379 I. P. C. by any

reference thereto, although there is reference in it to Section 378 I. P. C. In The Collector of Customs, Madras Vs. Nathella Sampathu Chetty and

Another, , the Supreme Court has pointed out the distinction between a mere reference to or citation of one statute in another and an

incorporation, which in effect means a bodily lifting of that provision of one enactment and making it part of another. That case was concerned with

the applicability of Section 178-A of the Sea Customs Act which had been introduced into the main Act by an Amending Act of 1955. The

offence in that case was under the Foreign Exchange Regulation Act, 1947, as amended in 1952. Section 23A of the Foreign Exchange Regulation

Act states that the restriction''s imposed by Sub-sections (1) and (2) of Section 8 of that enactment shall be deemed to have been imposed u/s 19

of the Sea Customs Act and all the provisions of that Act shall have effect accordingly.

The Sea Customs Act which was in force at the time when Section 23-A of the Foreign Exchange Regulation Act was enacted, did not contain

Section 178-A; that provision was introduced into the former Act after the enactment of the latter one. A question arose whether that provision will

apply to proceedings taken under the Foreign Exchange Regulation Act subsequent to the year 1955. The Supreme Court held that Section 23-A

had not the effect of incorporating the provisions of the Sea Customs Act, in which case, only those provisions of the Sea Customs Act which

were in existence at the time of the Foreign 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.

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 therefore, regardless of its actual terms it should be held, by itself to be a penal provision for any contravention of law. The correct approach,

in our opinion, will be to read both Section 39 of the Act and Section 378, I. P. C together and find out which enactment creates the offence. We

may in this connection refer to the observations of Gajendragadkar, J. in Pukhraj Vs. D.R. Kohli, , where the learned judge, referring to the

combined operation of the Sea Customs Act and the Foreign Exchange Regulation Act observed :

It would, thus be noticed that the combined effect of the aforesaid provisions of the two Acts and the relevant notification is that the notification of

1948 has the force of a notification'' issued u/s 19 of the Sea Customs Act, and, in consequence, gold imported in contravention of the said

notification is liable to be seized, u/s 178 of the said Act and renders the person in possession of the said gold liable for proceedings under ''S. 167

(8)'' of the said Act.....

(Italics there into '' '' ) are ours)

It will be noticed from the above, that even in a case, of adoption of certain provisions of an antecedent enactment by reference to proceedings

under the latter Act, such proceedings are held to be under the former Act alone. To put the matter more clearly with reference to the facts of the

present case, the combined operation of Section 39 of the Act and Section 378, I. P. C. will mean, that an infraction of the former would be

penalised by proceedings being taken under the latter. That this is the true position can be seen from the principles stated in ""Maxwell on the

Interpretation of Statutes"" 11th Edn. at page 380:

If a statute prohibits a matter of public grievance, or commands a matter of public convenience, all act3 and omissions contrary to its injunctions

are misdemeanours, and, if it omits to provide any procedure or punishment for such act or default, the common law method of redress is impliedly

given . . . ."" Therefore, inasmuch as Section 39 of the Act does not itself provide for punishment, but only creates an offence under the general law,

the punishment for such infraction will have to be under the ordinary law, namely, Section 379, I. P. C. From this it will also follow that the offence

falling u/s 39 of the Act will be an offence under the Indian Penal Code and not one ""against the Act"".

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.

Learned counsel then referred us to the decision in Vishwanath v. Emperor, AIR 1936 All 742, where it was held that an offence u/s 39 of the

Act was not an offence u/s 379, I. P. C. but one create by the Electricity Act and that the conditions imposed in Section 50 of the. Act for initiation

of prosecution in. respect, of it would apply. This view of the Allahabad High Court had not however been accepted in State Vs. Maganlal

Chunilal Bogawat, , where it was held that an offence u/s 39 of the Act would not come u/s 50 but could be dealt with only under S. 379, I. P. C.

In In Re: P.N. Venkatarama Naicker, , Sadasivam, J. has preferred to fellow the Allahabad view, which had also been accepted by the Rajasthan

High Court in Dhoolchand v. State, 1957 Cri L J 233 (Raj). In view of the construction which we have put upon Section 50 of the Act, we find

ourselves with great respect to Sadasivam, J. unable to share his view.

We accordingly answer the question formulated above in this manner: the offence of dishonest abstraction, consumption or user of electricity

will not be one coming within the mischief of Section 50 of the Indian Electricity Act but one u/s 379, I. P. C. read with Section 39 of that Act.