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Present .- Schneider and Lyall Grant JJ. and Drieberg A.J.NAGATYA ». JAYASEKKKE.
28—/'. (J. Colombo. 26,988.
Electricity—Can it Or subject of theft—Movable property—Pena! Code,ss. 20 and 307.
Eloctric cumin is not movable property within the meaningof acctiou 20 of the iYnal Code anil cannot he the subject of theoffence of theft-.
ASE referred by Lynll Grant J. to a Bench of three Judges onthe question whether under the law of Ceylon electricity can
be the subject of theft.
H. V. Perera (with N. E. Weerasooriya), for accused, appellant.Qrenier, C.C., for the Attorney-General.
March 22, 1927. Schnejdbk J.—
I* agree with the judgment of my brother Drieberg. Anopportunity to read it has been kindly afforded me by him. Theonly observation I would desire to add is that as the Penal Codehas not defined “corporeal property*1 or “movable property,"
except to indicate what property of a corporeal nature is not tobe regarded as included in the term “ movable property,'* that wemust resort to the general law', that is, our common law, to ascertainthe tfaeaning to be attached to the terms “ movable property **and “ corporeal property " for the purpose of deciding the questionraised by this appeal. Our common law is based purely on theBoman law. My brother lias referred to the Roman law. I willrefer only to two eminent writers, Orotius 1 and van Lecuwen.-They both agree in regarding corporeal things as those which “ maybe touched and seen '* as distinguished from incorporeal things“ which are not subject to the touch or sight but consist in rightsand privileges." In other words, they are “ things '* by a fictionof the law. They also agree that corporeal things are eithermovable or immovable. These conceptions are consistent withthe explanation attached to the term movable property in thePenal Code. Electricity, viewed from the point of any explanationor definition of what it is, does not come within the conception ofa “ corporeal thing " according to our common law. It cannot,therefore, be the subject of a theft.
1 Introduction to Dutch Jurisprudence, Bk. II., Chap. 1, 88. 10-14.
Commentaries, Bk. II., Chap. 1, as. 4-0. –
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1927. I jyatjL Grant J,—
Magaiya v. This is an appeal from a conviction by the Police Magistrate ofJayrwekere Q0i0mk0j which came before me, and which in view of the practicalimportance of one of the (questions raised I reserved for the' considera-tion of a larger Court.
The offence charged was that the accused committed theft ofelectric current, an offence punishable under section 367 of theCeylon Penal Code. Th© accused was found guilty and finedRs. 75.
An appeal was taken against the conviction on the ground thatthe evidence did not conclusively point to the accused being theoffender, and also on the ground that under the law of Ceylonelectricity cannot be the subject of theft.
Both these arguments were advanced before the learned Polio©Magistrate, but both were’rejected by him.
On the question of whether the accused had abstracted thecurrent I saw no reason to v differ from the finding of the learnedPolice Magistrate after the first argument, and I am still of thatopinion.
The only question which remained for consideration is whetherunder our law electricity can be the subject of an offence punishableunder section 367 of the Penal Code; , in other words, whether itcan be the subject of theft. .;
In view of the tentative opinion which I formed on this poiiiiH—an opinion which, if correct, would no doubt necessitate the intro-duction of remedial legislation—I' thought it advisable to reservethe case for the purpose of ascertaining whether my opinion agreedwith that of my brother Judges, and also in order that the Courtshould have the benefit of argument on behalf of the Crown.
Theft is defined, in section 36,6 of the Penal Code as follows;-1-.'- ■
*.* Whoever, intending to* take dishonestly any movable propertyout of the possession of any person without that person'sconsent, moves that iproperty in order to such takings: '-issaid to. commit theft;”.•
The subject of theft •‘Under that "section is movable property.Movable property is defined by section-20 of the Penal Code’ asfollows1 '
• ..■ V.l. •
“The words ‘movable property * are intended to includeCorporeal property. of every description, except land andthings attached' to" the. earth , or permanently fastened .toanything which is attached to the earth.".
The question before the Court really is -whether electricity .'iscorporeal property not attached to the earth or permanentlyfastened to anything attached to the earth.
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The first point to consider then is whether electricity is corporeal 1907*property. No definition of the word “ corporeal ” is given in thePenal Code.•Gbaot W*
Messrs. Boustead’s engineer, who gave evidence in this case, was Nag&iya v.asked to define electricity, and he did so in the following words:— Jayas&ere“Electricity is a state of tension in ether*of the atmosphere—itis energy.-'
Webster’s dictionary defines electricity as' “a power in nature,a manifestation of energy, exhibiting itself …
The same dictionary defines corporeal property as “ such asmay be seen and handled (as opposed to incorporeal, which cannotl)e seen or handled and only exists in contemplation)."
. Grotius divides, particular things into corporeal and incorporeal,
And defines corporeal things as such as are visible to the oytWardsense, as this house, this .book, &c.j
The definition of theft in the Indian Penal Code is the same asthat in . our code, and there is a similar correspondence betweenthe.respective definitions of movable property in the two Codes..
Tn India the difficulty as to whether electrical energy can .be ■ the .subject of theft, has been met by the provisions of the ElectricityAct, ‘No. .3 of 1903. Section 39 (I) of. that Act provides thatV whoever dishonestly abstracts, consume?, or uses any : energyshaU be deemed to have committed theft within the meaning ofthe Indian Penal Code," and section 2 of the Act defines energyits “ electrical energy expended at a rate greater than.25 watts,"
Our Electricity Ordinance of 1906 contains a similar definition/'of energy, but^ contains no section corresponding to section 39 (1)of the Indian Act. Not very much assistance can be derived fromthe :English law owing to the fact that the term “ larceny " inEnglish law is not the equivalent of the term “ theft " as used inthe'Indian and Ceylon Codes. On this point see Surr Vcnk'atap-payya Sastri v. Mainla Venkanna.1
It is noteworthy, however, that in England it has* been foundnecessary to make special provision by statute against the fraudulentuse. of electricity. Section 23 of the Electric Lighting Act of 1882provided that any pevsons who fraudulently; used electricity shouldbe guilty of simple larceny, and this section is-now replaced bysection 10 of the Larceny Act of 1916, which is in the followingterms
-Every person who maliciously or fraudulently abstracts,causes to be wasted or diverted, consumes, oi; uses anyelectricity shall be guilty of felony, and on convictionthereof liable, to be. punished as in. the case of – 6iinplelai^eny."
(1904) 7. L. R. 27 Mad. $31.
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_• Counsel has not been able to refer ns to any case, either localLvaii, or foreign, dealing specifically with the theft of electricity, norGrant J. l)ave I been able to discover any such case.
Sagaiya v. There is a reference in the English and Empire Digest to aJayasekere case Qf theft of electricity tried before the Central Criminal Courtin 1899. No particulars are given in the Digest, and I have notbeen able to obtain access to the case. As, however, the case issubsequent to the Electricity Act of 1882, it would probably nothelp one to resolve the problem now presented.
That problem is two-fold. Firstly, is electrical energy corporeal,and secondly, if it is corporeal, is it permanently fastened toanything attached to the earth ?
It is obvious that the same difficulty has presented itself to thelawyers of England and India, and although one cannot find anyjudicial decision on the point, the Legislatures of those two coun-tries have found it necessary, or at any rate desirable, to make itthe subject of larceny and theft respectively by special enactment.
The term “ property ” as defined in the larceny Act is notrestricted to corporeal property, but under our law, as in the Indian,it is so restricted:
It was argued on behalf of the accused that the Courts in con-struing a penal statute will give to the accused the benefit of anyreasonable doubt that exists as to its interpretation: There canbe no doubt that this is a principle of judicial interpretation. Ithink there is a reasonable doubt as to whether the makers of theCode intended to include electricity under the definition of corporealproperty, and in my opinion the accused is entitled to the benefitof a strict construction of the statute.
It is unnecessary to consider the further point whether assumingthe electricity which is the subject of this charge to have beencorporeal it was attached to the earth; No definite evidencewas led on this point, and T do not think that we can presume thatit was not attached.
I would allow the appeal, and quash the conviction.
The appellant was convicted under section 367 of the PenalCode of the theft of electric current of the value of 25 cents andwas sentenced to pay a fine of Rs. 75.
He appealed; the appeal was argued before my brother LyallGrant on the question whether the offence of theft could be com-mitted in the case of electric current, and he reserved the questionfor decision of a Bench of two or more Judges.
The matter was argued again before my brothers Schneider andLyall Grant and myself. The question for decision is whetherelectric current is movable property within the meaning of section 20of the Penal Code.
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Movable property is defined as including corporeal property ofevery description, except land and things attached to the earthor permanently fastened to anything which is attached to theearth.
The learned Police Magistrate has based his judgment on theground that the antithesis of corporeality is spirituality, and thatas electricity is not a spiritual substance it must be of a corporealcharacter.
But the division of things into corporeal and incorporeal isapparent, and not real. By incorporeal things the jurists did notmean such things as the soul, spirit, light, &c. Incorporealthings were mere legal entities (quae in jure coneistunt), suchas usufruct, inheritance, obligatio, which are not really thingshut aggregates of rights and duties.1 Corporeal things are thingswhich are tangible, and which, as the subject of theft, can beremoved from the possession of a person.
It is not easy to see how electricity can be regarded a$ a corporealthing of this nature.
Mr. Sharrock, an engineer of Messrs. Boustead Brothers, describeselectricity as energy, a state of tension in the ether.
It is described in the Encyclopaedia Britanniea as a physicalagency which exhibits itself by certain effects.
My brother Lyall Grant has pointed out that in India, where thedefinition of theft and of movable properly is the same as in ourCode, the difficulty whether electric energy can be the subject oftheft has been met by the provision in the Indian Electricity Act 3 of1903, section 3 (1), that “ whoever dishonestly abstracts, consumes,or uses any energy shall be deemed to have committed theft withinthe meaning of the Indian Penal Code,” energy being defined aselectrical energy expended at a rate greater than 25 watts.
He has also shown that in England special provision was madeby statute against the fraudulent use of electricity, first by theElectric Lighting Act of 1882 (45 & 46 Viet. c. 56 s. 23), whichwas replaced by section 10 of the Larceny Act of 1916, whichprovides that—
“ Every person who maliciously or fraudulently abstracts,causes to be wasted, consumes, or uses any electricity shallbe guilty of felony, and on conviction thereof liable to bepunished as in the case of simple larceny.”
I am of opinion that electric current is not movable propertywithin the meaning of section 20 of the Penal Code and that itcannot be subject of the offence of theft.
I set aside the conviction and acquit the accused.
1 Hunter, Roman Law, 4th edition, p. 287.
NAGAIYA v. JAYASEKERE