P L D 1952 Lahore 369 (PLP)

SHABIR AHMAD, J ‑Nasim Ansari and Abdul Wahid were standing trial for an offence under section 39 of the Electricity Act of 1910 before Mr. G. S. Khan, Magistrate, 1st class, Sial kot, who, by his order dated 16th June, 1951, discharged them. The Crown being of the view that the order of discharge was not justified, presented a petition in the Court of the Sessions Judge, Sialkot. The Sessions Judge by his order dated the 30th November, 1951, accepted the petition for revision presented by the Crown and against that order Nasim Ansari and Abdul" Wahid have come up in revision. The prosecution case was that when a raid was conducted on the house occupied by the two petitioners it was found that they were using electricity though they had no authorised con nection in the house. The raiding party consisted of Mr. Abdul Qayyum, S. D. O., P. W. D., Electricity Branch, Sialkot, Mirza Salim Beg, S.H.O., Lalamusa, District Gujrat, and some others. After discovering the unauthorized use of energy by the petitioners Mr. Abdul Qayyum gave a ruqa to Mirza Salim Beg on which the police officer had a formal first information report registered. The reason given by the trial Magistrate for passing an order of discharge in favour of the petitioners was that the prosecution had been launched by a person not competent to do so under section 50 of the Electricity Act, which runs as follows:‑ "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 Electric Inspector, or of a person aggrieved by the same" The Sessions Judge, Sialkot, was of the view that Abdul Qayyum was a person aggrieved by the offence and the prose cution could not be said to suffer from any defect. The learned counsel for the petitioners urged that the find ings of the learned Sessions judge that Abdul Qayyum was a person aggrieved by the offence was wrong. The learned, counsel for the Crown on the other hand urged that the offence committed by the petitioners fell not only under section 39 of the Electricity Act but also under section 379 Pakistan P. C. and as an offence under section 379 Pakistan P. C. could be taken cognizance of by a Court at the instance of anyone, section 50 of the Electricity Act had no application and, at any rate, Abdul Qayyum was a person aggrieved by the offence and the order of the learned Sessions judge suffered from no defect. It is doubtful if the acts alleged by the prosecution to have been ‑committed by the petitioners would amount to an offence under section 379 Pakistan P. C. but even if they do, they are clearly covered by section 39 of the Electricity Act, which reads as follows:‑ "Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Penal Code ,; and the existence of artificial means for such abstraction shall be prima facie evidence of such dishonest abstraction". As the offence for which the petitioner were being tried has been created by section 39 of the Electricity Act, I am of the opinion that section 50 of the Act will have application. In the view I take I am supported by a decision of this Court in Dina Nath v. Emperor A I R 1935 Lah. 191 and of the Allahabad High Court in Vishwanath v. Emperor A I R 1936 All.

742. I will now address myself to the contention of the learned counsel for the petitioners with regard to section 50 of the Electricity Act. His argument was that if, as in the present case, the Government was the owner of the electricity, the pro secution could be launched only at the instance of the Govern ment or of the Electrical Inspector, and that in cases in which the electricity belonged to a person other than the Government the person initiating the proceedings must be shown to be aggrieved by the offence. This argument is not warranted by the language of the section and the learned counsel could cite no authority in support of it. The plain meaning of the section is that the person initiating the proceedings must be one of the persons mentioned therein and the fact that the electricity which is the subject of the charge belongs to Government cannot debar a person aggrieved by the offence from lodging a prosecution against persons who have contravened any of the provisions of the Act or of any licence or order thereunder. The question arises whether Abdul Qayyum, S. D. O., P. W. D., Electricity Branch, Sialkot, could be deemed to be a person aggrieved by the offence alleged to have been committed by the petitioners. The officer is in charge of the property of Government and responsible for a proper working in the in his charge of the electric undertaking run by Government. In these circumstances fail to see how he can be said not to be a person aggrieved by a theft of energy committed in an area in his jurisdiction. The facts in Dina Nath v. Emperor A I R 1935 Lah. 191, a case relied upon by the petitioners' counsel were that the electricity stolen belonged to a Canton ment Board and the proceedings had been instituted by the Executive Officer of that Board. Sir Shadi Lal, Chief Justice, who, in a few, lines accepted the recommendation made by a Sessions Judge, remarked that as the Executive Officer had not been authorised by the Cantonment Board to institute the proceedings, it could not be held that he should be deemed to be an aggrieved person within the meaning of section 50 of the Electricity Act. There is noting to show that in the case dealt with by Sir Shadi Lal, the Executive Officer was in charge of the electricity and as the evidence in the present case discloses that Abdul Qayyum holds an entirely different position with regard to electricity, the decision relied upon has no application to the facts of the present case. Some other cases which deal with the question are of assis tance. In A I R 1936 All. 742, it was held that where a servant of an electric supply company on discovering the theft of electricity reports the matter to the police and asks them to investigate, the prosecution must be deemed to be at the instance of the company and there was no objection to the cognizance being taken by Courts. In Bhagalpur Electric Supply Co. Ltd. v. Hari Pershad Saha and others A I R 1938 Pat. 15 it was held that a person directly in charge of the property of an Electric Company, such as Chief Resident Engineer, was within the description of "person aggrieved" within the meaning of section 50 of the Electricity Act and any offence under the Act could be taken cognizance of on his report. I am in respectful agree ment with the view expressed in the Patna case, which has application to the facts of the present case. It is also possible to hold that the report by Abdul Qayyum could, in certain circumstances, be deemed to be report by Government whose servant Abdul Qayyum is, but I express no considered opinion on that aspect of the matter. For the reasons given above I have arrived at the conclu sion that the proceedings before the magistrate were not incompetent and dismiss the petition for revision. A. H. Petition dismissed.