Full Judgment Text
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PETITIONER:
STATE OF KARNATAKA
Vs.
RESPONDENT:
ADIMURTHY ALIAS B. MOORTHY
DATE OF JUDGMENT11/05/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1983 AIR 822 1983 SCR (3) 249
1983 SCC (3) 268 1983 SCALE (1)627
ACT:
Indian Electricity Act, 1910-Section 50-Scope of.
Words and phrases-"At the instance of "-Meaning of.
HEADNOTE:
On a routine inspection a Supervisor of the State
Electricity Board found that by tampering with the electric
connection, the respondent was using switches, lights and
fans inside the house without the meter recording any
consumption. On the direction of the Assistant Engineer he
lodged a report against the respondent with the police
alleging theft of electricity by him.
The trying Magistrate acquitted the respondent of the
offence with which he was charged on the ground that section
SO of the Indian Electricity Act, 1910 did not authorise the
Supervisor to lodge a complaint. The High Court upheld the
Magistrate’s order holding that the notification issued by
the Electricity Board authorizing, among others, supervisors
to institute prosecutions in terms of section SO not having
been published in the official Gazette, the Court could not
take judicial notice of it and that the prosecution had
failed to establish that the supervisor was competent to
lodge the complaint.
Allowing the appeal,
^
HELD . The order of acquittal recorded by the
Magistrate as affirmed by the High Court proceeds on a
construction of section 50 of the Act which is wholly
unwarranted and has resulted in manifest miscarriage of
justice. Section 50 of the Act nowhere requires that the
authorisation should be by a notification published in the
official Gazette. The prosecution had been launched ‘at the
instance of the Electricity Board within the meaning of
section 50 of the Act. The meaning of the phrase ’at the
instance of’ does not imply the same degree of obligation to
obey as does ’command’. That is also the legal sense in
which the phrase has been understood in section SO of the
Act: [252 B-C-Dl
Ram Chander Prasad Sharma v. State of Bihar & Anr,
[1966] 3 S.C.R. 517 referred to.
Vishwanath v. Emperor AIR 1936 All. 742; State (Dehli
Administration) v. Dharm Pal 1980 Crl. L.J. 1394; State of
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Karnataka v. Abdul Nabi 1975 Crl. L.J. 746 approved.
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The High Court was misled by the use of the word
’notification’ contained in the manual. The notification is
a general order issued by the Board in terms of section 50
authorising certain of its officials to institute
prosecutions or make complaints to the police for
instituting prosecutions for offences under certain sections
of the Act. It was an internal matter for the Electricity
Board. It is quite clear upon the terms of section SO that
the Supervisor was authorised to lodge a complaint with the
police. The Board, being a public authority, it was
sufficient for the prosecution to have placed on record a
copy of the manual containing the relevant notifications.
That was sufficient proof of the authorisation requisite
under section 50 of the Act. [254 F, 255 A-C]
Even if the requirement of section 50 was that the
authorisation should have been by a notification published
in the official Gazette that would have hardly made a
difference. [255 C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
285 of 1983
Appeal by Special leave from the Judgment and order
dated the 15th December, 1980 of the Karnataka High Court in
Crl. A. No. 590 of 1979.
M. Veerappa for the Appellant.
Vimal Bobde A.C, and P.R. Ramasish for the Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is directed
against a judgment of the Karnataka High Court dated
December 15, 1980 affirming the order of acquittal passed by
the Munsiff & Judicial Magistrate First Class,
Krishnarajanagar dated July 10, 1979 acquitting the
respondent of an offence punishable under ss. 39 and 44 of
the Indian Electricity Act, 1910 read with s. 379 of Indian
Penal Code. 1860.
The prosecution case in brief was as follows. On August
25, 1976 at about 12 noon P.W. 1 Syed Ameer, Supervisor,
Karnataka Electricity Board, went to the house of the
respondent on a routine inspection to check the electric
meter installed there. He found the meter board at the
entrance and though the meter was not recording consumption
of electric energy, the lights and fans were on. It appeared
that the respondent had tampered with the main connection by
fixing two switches to the wall of the house and by
operating the
251
switches the lights and fans inside the house could be used
without the meter recording any consumption. Later in the
day, he along A with the Assistant Engineer attached to the
Karnataka Electricity Board, Krishnarajanagar and the Junior
Engineer went to the house of the respondent and saw that
there was theft of electric energy. Accordingly, on the
direction of the Assistant Engineer, P.W. 1 Syed Ameer
lodged a report with the police Ex. P-l. After an
investigation into the complaint, the Krishanrajanagar
police filed a challan. The prosecution led evidence of five
witnesses including that of P.W. 1 Syed Ameer, Supervisor
and P.W. 2 Bheemanna, Junior Engineer to substantiate the
charge. The learned trying Magistrate however acquitted the
respondent of the offence with which he was charged under s.
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248 (1) of the Code of Criminal Procedure, 1973 on the
ground that the prosecution had failed to establish that
P.W. 1 Syed Ameer had been authorized to lodge a complaint.
On a reading of s. SO the Act, he held that a Junior
Engineer of the Electricity Board could lodge a complaint
but not the Supervisor, and the mere presence of the Junior
Engineer after detection of the theft, does not imply that
the Supervisor had been authorised to lodge a complaint. The
High Court has upheld the order of acquittal passed by the
learned trying Magistrate on the ground that the
notification issued by the Karnataka Electricity Board
authorizing Junior Engineers, Section officers and
Supervisors to institute prosecutions in terms of s. SO of
the Act not having been published in the official Gazette,
the Court could not take judicial notice of any such
notification and it was for the prosecution to lead evidence
in proof thereof to establish that P.W. 1 Syed Ameer was
competent to lodge a complaint. lt rejected a prayer of the
learned public prosecutor to lead additional evidence in
proof of the notification on the ground that would be
tantamount to allowing the prosecution to fill up a lacuna
in the case.
The decision of the appeal must turn on the
construction of s. SO of the Act which reads as follows:
"50. Institution of prosecutions - 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."
According to the plain English language, the ordinary
meaning of the phrase "at the instance of" in the
collocation of words "No
252
prosecution shall be instituted .. except at the instance
of" A must, in the context in which it appears, mean ’at the
behest of, or, at the solicitation of’. The word ’instance’
as a verb means "to urge, entreat urgently, importune". The
meaning of the phrase "at the instance of" as given in
Random House Dictionary of the English Language at p. 690
is: ’at the urging or suggestion of’. ’Instance’ does not
imply the same degree of obligation to obey as does
’command’. That is also the legal sense in which the phrase
"at the instance of" in s. 50 of the Act has been
understood. It is clear upon the terms of s. SO that it
nowhere requires that the authorization should be by a
notification published in the official Gazette.
The order of acquittal recorded by the learned
Magistrate and as affirmed by the High Court proceeds on a
construction of s. SO of the Act which is wholly unwarranted
and has resulted in manifest miscarriage of justice. There
can be no doubt that the prosecution had been launched "at
the instance of’’ the Electricity Board within the meaning
of s. SO of the Act. The Karnataka Electricity Board which
is a statutory body had issued a notification No. KEB/A5/
6053/7374/SOL/401/72 dated April 18, 1974 which finds place
in the Karnataka Electricity Board Manual, Vol. 1, 2nd edn.
at p. 80 which is to the following effect:
Section 134 (4) (iv):
Superintending Engineers, Executive Engineers,
Assistant Engineers, Junior Engineers, Section officers
and Supervisors are authorised to institute
prosecutions or make complaints to the jurisdictional
officers in charge of Police Stations, for instituting
prosecutions when offences under any of the Sections
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39, 41, 43 and 44 of the Electricity Act or Rule 56
read with Rule 138 of the Electricity Rules are
committed or are reasonably believed to have been
committed in their respective jurisdictions."
The matter is no longer res integra. In Ram Chander
Prasad Sharma v. State of Bihar & Anr.(l) the Court
observed:
"It is true that Bhattacharya was not himself a
"person aggrieved" and that the "person aggrieved" was
253
the P.E.S. Co. The P.E.S. Co. however. is a body
corporate and must act only through its directors or
officers. A Here we have the evidence of Ramaswami to
the effect that he held a general power of attorney
from the P.E.S. Co., and that he was specifically
empowered thereunder to act on behalf of P.E.S. Co., in
all legal proceedings. The evidence shows that it was
at his instance that Bhattacharya launched the first
information report and, therefore, it would follow that
the law was set in motion by the "person aggrieved"."
Interpreting the phrase "at the instance" in s. SO of
the Act, the Allahabad High Court in Vishwanath v.
Emperor(l) stated:
"If it had been the intention of the Legislature
that no case should be instituted in Court except by
the Electric Company itself or the other persons
mentioned in S. 50 of the Act, the Legislature would,
we think have used the ordinary phrase "on the
complaint of" and the section would have been on the
lines that no Magistrate should take cognizance of any
offence referred to in S. SO of the Act, except upon
the complaint of certain persons. The phrase "at the
instance of" means merely "at the solicitation of or at
the request of"."
In that case the prosecution was in fact launched by
the police at the behest of the electric supply company and
the High Court held that there could be no doubt that the
company desired that the accused should be prosecuted for
the offences. The officers of the company had discovered the
theft and they had, as here, reported the matter to the
police and asked the police to make an investigation, as in
the instant case. Upon these facts, the Allahabad High Court
held that the prosecution had been launched at the instance
of the electric supply company within the meaning of s. SO
of the Act. That construction of s. SO of the Act by the
Allahabad High Court in Vishwanath’s case, supra, has
throughout been followed.
We find that the Delhi High Court in State (Delhi
Administration v. Dharam Pal(2) as well as the Karnataka
High Court in State
254
of Karnataka v. Abdul Nabi(l) have taken the same view
placing A emphasis on the circular issued by the General
Manager laying down the procedure to be followed in
launching prosecutions of theft of electricity which was in
terms similar to the notification issued by the Karnataka
Electricity Board. It is unfortunate that the learned -
Judges of the Karnataka High Court should have disregarded
their earlier judgment in Abdul Nabi’s case, (supra) more
so, when one of them was a member to the earlier Bench.
After referring to the judgment of the Allahabad High Court
in Vishwanath’s case (supra) as to the meaning of the phrase
"at the instance of.’, the High Court had earlier observed
in Abdul Nabi’s case, (supra):
"Where, therefore, a person acting for and on
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behalf of the Board lodges a complaint with Police in
respect of unlawful extraction of electric energy and
the police in turn file a charge sheet, the prosecution
must be regarded as instituted at the instance of the
Board."
In the instant case, the High Court refers to the
concession of the learned Government Advocate that ’the
notification had not been published in the official Gazette’
and observes:
"In that view of the matter, it is plain that this
Court cannot take judicial notice of existence of such
notification and the facts contained in that
notification. The prosecution ought to have led in
evidence on producing this notification to establish
that P.W. I was legally authorized to prosecute within
the meaning of s. SO of the Act. It has failed to do
so."
It appears that the High Court was obviously misled by the
use of the word ’notification’ contained in the Manual. The
Karnataka Electricity Board is constituted under s. 5 of the
Electricity (Supply) Act, 1948. Under s. 12 of that Act, the
Electricity Board is a body corporate having perpetual
succession and a common seal. The Electricity Board
therefore is an artificial person and depends on its
officers and servants to carry out its powers, functions and
duties. The aforesaid notification is a general order issued
by the Electricity Board in terms of s. 50 of the Act
authorizing the Superintending Engineers, Executive
Engineers, Assistant Engineers, Junior Engineers, Section
Officers and Supervisors to institute prosecutions or
255
make complaints to the police for instituting prosecutions
offences under any of the Sections 39, 41, 43 and 44 of the
Electricity Act or A Rule 56 read with Rule 138 of the
Electricity Rules are committed or are reasonably believed
to have been committed in their respective jurisdictions. It
was an internal matter for the Electricity Board and it is
quite clear upon the terms of s. SO that P.W. I Syed Ameer,
Supervisor was authorized to lodge a complaint with the
police. The Electricity Board being a public authority, it
was sufficient for the prosecution to have placed on record
a copy of the Manual containing the relevant notification.
That was sufficient proof of the authorization requisite
under s. 50 of the Indian Electricity Act, 1910.
It may not be out of place to mention that even if the
requirement of s. SO of the Act were that the authorization
should have been by a notification published in the Official
Gazette, that would hardly make a difference. The phrase "by
notification in the official Gazette" occurs in s. 6(1) of
the Criminal Law Amendment Act, 1952 and it is also occurred
in. s. 16 of the Criminal Law Amendment Act, 1908 and s. 22
of the Code of Criminal Procedure, 1908. In Balkrishan Anant
v. Emperor(1), Beaumont C.J. while dealing with s. 16 of the
Criminal Law Amendment Act, 1908 which empowered the local
Government by notification in the official Gazette to
declare an association unlawful on the grounds mentioned
therein which are in effect that the association constitutes
a danger to the public peace, observed:
"The word used in s. 16 is ’notification’ and not
’insertion’. ’Notification’ is defined in Webster’s
Dictionary as "Act of notifying; act of making known;
an intimation or notice; esp., act of giving official
notice or information by words, by writing, or by other
means;" so that the essence of notification is the
giving of notice, and in my opinion, the words "by
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notification in the official Gazette" mean simply "by
giving notice in the official Gazette."
In the context of s. 16 of the Criminal Law Amendment
Act, 1908 the Court required a stricter proof that all the
formalities requisite to the act of notifying or in other
words, publishing the notification had actually been carried
out. That was because the law under
256
which it was issued trenched upon the rights and liberties
of the citizens.
Finally, a few words on the merits. On a consideration
of the evidence adduced, the learned Munsiff came to the
conclusion that the prosecution had established its case
against the respondent beyond all reasonable doubt, but on a
misconstruction of s. SO of the Act, acquitted him under s.
248(1) of the Code. In maintaining the order of acquittal,
the High Court confined its decision on its interpretation
of s. 50 of the Act and has not touched upon the merits We
have gone through the evidence and we are satisfied that the
evidence led by the prosecution is sufficient to raise an
inference of guilt against the respondent. This is not
contested by learned counsel for the respondent, but he only
pleads that a lenient view should be taken in regard to the
punishment.
For these reasons, the appeal succeeds and is allowed.
The judgment of the High Court of Karnataka upholding the
order of acquittal of the respondent is set aside and he is
convicted of having committed an offence punishable under s.
39 of the Indian Electricity Act, 1910 read with s. 379 of
the Indian Penal Code, 1860. The learned standing counsel
made it clear at the time of grant of special leave that the
State Government was only desirous that the law on the point
should be settled and it was not interested in the
imposition of a punishment on the respondent. In view of
this, we do not impose any sentence on the respondent,
having regard to the period of time that has elapsed.
We are thankful to Shri V. A. Bobde who appeared as
amicus curiae for the assistance that he has rendered.
P.B.R. Appeal allowed.
257