N 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 AC and PR 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 sections 39 and 44 of the read with section 379 of Indian Penal Code
The prosecution case in brief was as follows
On August 25 1976 at about 12 noon PW 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 PW 1 Syed Ameer lodged a report with the police exhibit P l
After an investigation into the complaint the Krishanrajanagar police filed a challan
The prosecution led evidence of five witnesses including that of PW 1 Syed Ameer Supervisor and PW 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 section 248 1 of the Code of Criminal Procedure 1973 on the ground that the prosecution had failed to establish that PW 1 Syed Ameer had been authorized to lodge a complaint
On a reading of section 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 section 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 PW 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 section 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 section 50 of the Act has been understood
It is clear upon the terms of section 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 section 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 section SO of the Act
The Karnataka Electricity Board which is a statutory body had issued a notification No KEBA5 60537374SOL40172 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 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 vs State of Bihar  Anrl the Court observed It is true that Bhattacharya was not himself a person aggrieved and that the person aggrieved was 253 the PES Co The PES 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 PES Co and that he was specifically empowered thereunder to act on behalf of PES 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 section SO of the Act the Allahabad High Court in Vishwanath vs Emperorl 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 section 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 section 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 section SO of the Act
That construction of section 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 vs Dharam Pal2 as well as the Karnataka High Court in State 254 of Karnataka vs Abdul Nabil 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 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 PW I was legally authorized to prosecute within the meaning of section 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 section 5 of the 
Under section 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 section 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 section SO that PW 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 section 50 of the 
It may not be out of place to mention that even if the requirement of section 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 section 61 of the Criminal Law Amendment Act 1952 and it is also occurred in
section 16 of the Criminal Law Amendment Act 1908 and section 22 of the Code of Criminal Procedure 1908
In Balkrishan Anant vs Emperor1 Beaumont CJ while dealing with section 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 section 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 notification in the official Gazette mean simply by giving notice in the official Gazette
 In the context of section 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 section SO of the Act acquitted him under section 2481 of the Code
In maintaining the order of acquittal the High Court confined its decision on its interpretation of section 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 section 39 of the read with section 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
PBR Appeal allowed


Summary:
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 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 vs State of Bihar  Anr referred to
Vishwanath vs Emperor AIR 1936 All 742 State Dehli Administration vs Dharm Pal  State of Karnataka vs Abdul Nabi approved
250 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
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