GOPI NAIK Vs. SOMNATH SINAI PRIOLKAR

JUDGEMENT

(1.) The respondent, who is the original complainant, filed a complaint against the applicant/original accused, according to him, for an offence under S.425 of the I. P. C. The case of the complainant was that the accused cut off the water supply of his flat wherein he resides, thereby causing such change in the flat as destroys or diminishes its value and utility. The accused raised a preliminary objection on the ground that the cutting off of the water supply did not constitute an offence under S.425 I. P. C. The case of the accused is that the acts alleged by the complainant do not contain the ingredients necessary for constituting an offence of mischief and that therefore the complaint of the respondent should be dismissed in limine without trial. In support of his case Shri Cardozo, learned advocate for the petitioner, relies on Ramdas Pandey V/s. Nagendra Nath ., 1948 AIR(Cal) 197 and I.H. Khan V/s. V.M. Arathoon , 1969 CrLJ 242 .

(2.) I am unable to agree with the contentions raised on behalf of the accused. What is required under S.425 is that the accused should "cause the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously." The cutting off of the water supply constitutes such destructive change in the flat as diminishes its value or utility. It is argued by Shri Cardozo that the complainant only alleged the cutting off of the water supply and the cutting off of the water supply could be effected without causing any destruction. If the cutting off was done merely by tightening up the pipe without any destruction, there might be some weight in his argument, but the complainant has clearly stated that the act of cutting off was destructive thereby ruling out the question of stoppage of water by the tightening of the water pipe. In the cases on which Shri Cardozo relies, there was stoppage, in one case of water and in the other case of electric current, but in both the cases the stoppage was effected by tightening of the pipe or switching off of the current without causing any physical change, which is essential for the commission of an offence under S.425. Tightening of the pipe and switching off of the current are not destructive. In the present case, the complainant has alleged that the cutting off involved destruction. The respondent has, in the course of his arguments, explained to me how the cutting off was destructive and stated before me that the water pipes were snapped and plugged. Besides, the complainant has also stated that the acts of the accused constitute an offence under S.425 I. P. C. This Section defines mischief. The punishing section is S.426. The use of a defining Section like S.425 I. P. C., in short form expresses the existence of all the ingredients contained in the definition.

(3.) At this stage we are not concerned with the actual commission of the offence. A bare allegation that the offence was committed is enough. I agree with the two Courts below that such an allegation exists and that the door of the Court should not be shut out to the complainant in a summary fashion.