(Order of Reference to the Full Bench by KAILASAM, J., dated 16-8-1963):

This is an appeal by the Public Prosecutor against the acquittal of the six respondents by the Sub Magistrate of Papanasam of offences under S. 379, I. P. C., read with S. 39 of the Indian Electricity Act and S. 44 (c) and (d) of the Indian Electricity Act. The case for the prosecution is that the first accused celebrated the marriage of his daughter and for that purpose obtained a temporary connection from the Kumbakonam Electric Supply Corporation. Suspecting that there was some tampering of the electricity for providing energy for the marriage pandal, P. W. 1 inspected the place and found wires had been inserted and cut out leads were provided from the meters of the houses belonging to accused 2 to accused 5. P. W. 1 deposed that the consumption of the electricity taken to the marriage pandal was not recorded. He also found the link opened in one of the meters and the meter not functioning. On the evidence, the lower Court came to the conclusion that the prosecution has not succeeded in proving that the accused were guilty of the offences under the Indian Electricity Act.

Before the trial Court, a preliminary point was taken on behalf of the accused. It was submitted before the lower Court that under S. 50 of the Indian Electricity Act, 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. The learned Magistrate overruled the objection of the defence and held that the prosecution was properly instituted.

Learned Counsel appearing for the accused raised the same contention in this appeal against acquittal that the prosecution has not been instituted by the Government or by an Electrical Inspector or by an aggrieved person. It is admitted by the Public Prosecutor that the company is a licensee and therefore the prosecution was not at the instance of the Government or by an Electrical Inspector. He submitted that in any event, the Chief Engineer, Electricity of the Kumbakonam Corporation will be a person aggrieved under the Act. The Public Prosecutor also submitted that so far as the offence of theft of electricity is concerned, it is not an offence under the Electricity Act, but an offence only under S. 379, I. P. C., and that the restriction imposed by S. 50 of the Electricity Act is not applicable.

S. 39 of the Indian Electricity Act provides that 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 obstruction shall be prima facie evidence of such dishonest abstraction, As electricity is not moveable property under S. 22 of the Indian Penal Code, theft of electricity will not by itself be an offence under S. 379, I. P. C. S. 39 of the Indian Electricity Act provides that dishonest abstraction or consumption or use of electrical energy shall be deemed to be theft within the meaning of the Indian Penal Code. The question for consideration is whether dishonest abstraction, consumption or use of electrical energy is an offence punishable under the Indian Electricity Act or under the Indian Penal Code. No doubt, it will not be an offence under S. 379, I. P. C, but for the explanation contained in S. 39 of the Indian Electricity Act. If dishonest abstraction, consumption or use of electrical energy is an offence against the Electricity Act, the condition imposed under S. 50 of the Electricity Act is applicable. But if it is an offence under S. 379, I. P. C., the condition required under S. 50 of the Indian Electricity Act need not be fulfilled.

A Bench of the Allahabad High Court in Viswanath v. Emperor A.I.R. (1936) All. 742., held that dishonest abstraction of electrical energy would not have been an offence under S. 379, I. P. C., if it had not been for the provision of S. 39 of the Electricity Act. Therefore, it was an offence which was created by the section and the Legislature intended that S. 50 of the Electricity Act should apply to an offence of this nature. The Bombay High Court in State v. Maganlal Chunilal A.I.R. (1956) Bom. 354 [LQ/BomHC/1955/306] ., disagreed with the decision in Viswanath v. Emperor A.I.R. (1936) All. 742., and held that the offence of abstraction of energy which is defined in S. 39 of the Electricity Act is expressly made an offence punishable under S. 379 and is not made an offence under the Electricity Act or any rule, licence or order thereunder and S. 50 of the Indian Electricity Act has no application.

In Venkatarama Naicker v. State 1961 M.W.N. Crl. 206., Sadasivam J., dissented from the decision of the Bombay High Court and followed the Allahabad High Court. The learned Judge expressed the view that dishonest abstraction of electricity is not punishable under S. 379, I. P. C., as electricity is not moveable property within S. 22 of the I. P. C., since it is not corporeal property. The learned Judge then referred to Ss. 39 to 46 and 48 and 49 and concluded that the heading of S. 39 is Theft of Energy and it supports the interpretation that abstraction of electrical energy punishable under S. 379, I. P. C., read with S. 39 of the Electricity Act is an offence against the Indian Electricity Act, and the provisions of S. 50 should be complied with for a prosecution to be launched.

Dishonest abstraction, consumption or use of electrical energy is not theft under S. 379, I. P. C., for electrical energy is not moveable property under S. 22, I. P. C. The effect of S. 39 of the Indian Electricity Act is to add to the definition in the Indian Penal Code. Instead of providing that dishonest abstraction, consumption or use of energy is punishable under the Act, the section provides that dishonest abstraction etc., shall be deemed to be theft within the meaning of the Indian Penal Code. Therefore, the act of dishonest abstraction, consumption or use of electrical energy is by virtue of S. 39 an offence under the Indian Penal Code. A reading of Ss. 40, 41, 42, 43, 44, 45, and 48 and S. 46 strengthens my view, for except in S. 39 in all other sections, the act is made punishable under the various sections of the Indian Electricity Act. For instance, S. 40 provides that malicious waste of energy is punishable with imprisonment for a term which may extend to two years. S. 41 provides that contravention of the provisions of S. 28 is punishable with a fine of Rs. 3000. Ss. 42, 43, 44, 45, 46 and 47 also provide for punishments for the acts which contravened the provisions of the Indian Electricity Act. Though various other Acts are made punishable under the Indian Electricity Act, the dishonest abstraction, consumption or use is deemed to be an offence under the Indian Penal Code, and no punishment under the section is provided for. I am of the view that S. 39 only adds to the definition contained in the Indian Penal Code and dishonest abstraction, consumption or use of electrical energy is made an offence punishable under the Indian Penal Code. Therefore, the prosecution for an offence of dishonest abstraction, consumption or use need not be instituted as required under S. 50 of the Indian Electricity Act. As I am taking a different view from Sadasivam J., I consider it is desirable that the matter should be finally decided by a Bench of this Court. The question of law is referred to a Bench.

(Pursuant to the above Order of Reference this appeal coming on for hearing before Ramachandra Iyer, C. J., and Ramakrishnan, J. on 17th October, 1963, their Lordships directed the appeal to be posted before the Full Bench; and this appeal coming on this day for hearing before the Full Bench, the Court expressed the following):

OPINION (6-11-63).

(Delivered by the Chief Justice ).

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 be decided on this reference can be formulated thus:

Whether a dishonest abstraction, consumption and or use of electrical energy, which is statutorily made a theft by virtue of S. 39 of the Indian Electricity Act, will amount to an offence against that Act, or one under S. 379 of the I. P. C.

To appreciate the significance of the question and indeed 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 Wawab, the first respondent before us, is a resident of Pandaravadai in Tanjore District. In connection with the marriage of his daughter, which took place on 7th September, 1960, he put up a Pandal in front of his house, which occupied the entire breadth of the street, extending in its length to the neighbouring houses oh 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 9th September, 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 houses. 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 under S. 379, I. P. C, read with S. 39 of the Indian Electricity Act (which will hereafter be referred to as the Act) for stealing electricity. The two subsequent charges were under Ss. 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 S. 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 Judges opinion, the offence was one under the Indian Penal Code, and not under the Indian Electricity Act. But a different view had been expressed by Sadasivam, J., in In re P.N. Venkatarama Naicker A.I.R. 1962 Mad. 407.. 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, Ss. 39, and 50:

39. 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 make 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.

50. 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, prosecution 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. S. 378, I. P. C, which defines theft, cannot, standing by itself, apply to it. Therefore S. 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 S. 378 I. P. C. As was pointed out in Y. M. I. A., Madras v. J. C. T. Officer, Madras 76 L.W. 704 at 710.,

Athing can be deemed to be something else 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 under S. 39 of the Act. Fictions are often resorted to under the law either for the purpose, 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. L. R. 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 (1774) 1 Cowp. 161 at 177., for the proposition that fictions created by law should never be contradicted so as to defeat the ends for which they were invented. The same rule has been enunciated by Bhagwati J., in Bengal Immunity Co v. State of Bihar A.I.R.1955 S.C. 661 at 709., where 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 lovers 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 mere 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 Hdeemed to be a reality and not any thing else. The following oft-quoted passage in the judgment of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council H. L. 1952 A.C. 109., will make that point clear:

If you are bidden to treat an imaginary state of affairs as real yon 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 S. 378, I. P. C., yet, by virtue of the fiction created by S. 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 Babulal v. Emperor A.I.R. 1938 P. C. 130. Lord Wright, while considering the nature of an offence under 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 under S. 39 which creates a statutory theft sufficiently established against who ever 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 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 S. 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. S. 379, I. P. C., which provide, for punishment in respect of theft, is not even referred to or incorporated in S. 39. Prima facie , therefore, the first part of S. 39 must be held 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 Ss. 40 to 44 of the Act provide for punishments for transgressions of pertain rules or obligations on the part of consumers and others, there is no sanction provided in S. 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 page 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 consumption 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 S. 39 of the Act cannot be regarded as one against the Act, 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 the part of the Legislature to treat an infraction coming under S. 39 of the Act as an offence under the Act itself. He referred in this connection to the heading of Ss. 39 to 50. It speaks of Criminal Offence and Procedure. Secondly, he invited our attention to Ss. 48 and 49 of the Act, which treat S. 39 as imposing a penalty or punishment. As we have pointed out earlier, there is nothing in S. 39 imposing, by itself, any punishment or penalty. Therefore, the reference to that section as imposing a penalty in Ss. 48 and 49 cannot be regarded as strictly accurate. In one sense, in so far as the combined reading of S. 39 of the Act with S. 378 would entail punishments under S. 379, I. P. C., it can even be said that S. 39 imposes a penalty. But that is not the same thing as saying that a dishonest abstraction of electricity is an offence against S. 39, albeit it might be an infraction under that section.

The learned Advocate General however urged that S. 39 of the Act should be construed as creating an offence in respect of which there is a reference to S. 378, I. P. C., only for the purpose of prosecution and punishment. The obvious criticism to this argument is that S. 39 is merely declaratory; it does neither incorporate in itself S. 379, I. P. C., nor does it even, refer to it. S. 378, I. P. C., referred to in S. 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

1. Does S. 39 of the Act amend S. 378, I.P.C.

2. Can S. 39 be regarded as having been incorporated in S. 378, I. P. C, or vice-versa

3. Can S. 39 be regarded as referring to S. 378, I. P. C.

4. If it is neither of the above three, cannot S. 39 be regarded as itself creating an offence, the reference to S. 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 S. 39 by no means can be regarded as effectuating an amendment to S. 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 S. 378, I. P. C. By way of example, it is said that if S. 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 S. 6-A of the General Clauses Act will be absent in the case. The provisionS. 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 S. 39 were to be regarded as amending S. 378, 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 matte r in the view we are inclined to take of the nature of the provisions contained in S. 39 of the Act.

Coming to the second head, it is argued that S. 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 115 E.R. 132=6 O.B. 343., R. v. Brecon 117 E.R. 665=15 O.B. 813., Recherrys Estate 31 L. J. Ch. 351. and Ex parte St. Sepulchre (1864) 33 L. T. 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 S. 39 of the Act to warrant an inference that either S. 39 has been incorporated into S. 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 S. 39 of the Act cannot be held to have brought in S. 379, I. P. C., by any reference thereto, although there is reference in it to S. 378, I.P.C. In Collector of Customs v. Sampathu Chetti A.I.R. 1962 S. C 316., 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 the provision of one enactment and making it part of another, That case was concerned with the applicability of S. 173-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, S. 23-A of the Foreign Exchange Regulation Act states that the restrictions imposed by Sub-Ss. (1) and (2) of S. 8 of that enactment shall be deemed to have been imposed under Ss. 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 S. 23-A of the Foreign Exchange Regulation Act was enacted, did not contain S. 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 S. 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 S. 39 of the Act cannot be said to have either incorporated S. 378, I. P. C., or referred to it, That may be so. But it does not follow therefrom that S. 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 S. 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 S. 39 of the Act and S. 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 v. D. R. Kohli A.I.R. 1962 S.C. 1559., 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 that 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 under S. 19 of the Sea Customs Act, and, in consequence, gold imported in contravention of the said notification is liable to be seized under 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 are ours).

It will be noticed from the above, that even in a case of adoption of certain provisions of the 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 S. 39 of the Act and S. 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 acts and omissions contrary to its injunctions are misdemeanours, and, if it omits to provide any procedure or punis

Therefore, inasmuch as S. 29 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, S. 379, I. P. C. From this it will also follow that the offence falling under 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 S. 39 of the Act merely creates a fiction, it cannot be the same as S. 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 S. 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 S. 39 of the Act will be to treat the offence as one of theft.

Learned Counsel then referred us to the decision in Viswanath v. Emperor A.I.R. 1936 All. 742., where it was held that an offence under S. 39 of the Act was not an offence under S. 379, I, P. C., but one created by the Electricity Act and that the conditions imposed in S. 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 BombayStatev. Maganlal Chunilal A.I.R. 1956 Bom. 354 [LQ/BomHC/1955/306] ., where it was held that an offence under S. 39 of the Act would not come under S. 50 but could be dealt with only under S. 379, I. P. C. In In re Venkatarama Naicker A.I.R. 1962 Mad. 497 [LQ/MadHC/1962/2] . Sadasivam, J., has preferred to follow the Allahabad view, which had also been accepted by the Rajasthan High Court in Doolchand v. State 1957 Crl. L. J. 233. In view of the construction which we have put upon S. 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 S. 50 of the Indian Electricity Act, but one under S. 379, I. P. C., read with S. 39 of that Act.