SAMBASIVA MUDALI Vs. EMPEROR

JUDGEMENT

(1.) The petitioners who are six in number were convicted and sentenced as follows : Petitioners 1 to 4 (accused 1 to 4) under Section 430, petitioners 5 and 6 (accused 7 and 8) under Section 430 read with Section 34; petitioners 2 and 3 (accused 2 and 3) also under Section 352. Petitioners 2 and 3 (accused 2 and 3) were fined Rs. 60 and all the others Rs. 50 each.

(2.) The conviction arose out of the act of the ryots of Theniluppai village, to which the petitioners belong, opening the sluice of the feeder channel from the Cheyyar anicut and also in removing a mud dam which had been temporarily put up across a vellavari also taking off water from the same anicut, but from the opposite bank. The object of the villagers was to take water to their own village tank fed by this sluice and by the vellavari, and these acts were done against the orders of the Public Works Department which has the duty of regulating the distribution of water of this irrigation system, in exercise of which duty the Sub-divisional Engineer had ordered that the sluice to the Theniluppai village should be closed so that the water may flow down to two other village tanks, i. e., Nemili and Venkodu lower down. On the night of 28 November 1928 the Public Works lascar, P. W. 1, and a number of ryots including P. W s. 6 and 7 from the village of Alathur were watching the sluice and mud dam. The allegation is that at 11 p. m. accused 1, 3, 4, 7 and 8 and some others arrived and at the instigation of accused 7 and 8 the others first removed the mud dam and then opened the sluice. The lascar and the ryots of Alathur protested but could not do anything. After the Theniluppai villagers had left, those who were watching repaired the damage first by restoring the dam across the vellavari and closing the sluice early next morning. At about 7 a. m. accused 2, 5 and 6 (of whom 5 and 6 have been acquitted) came and wanted to open the sluice again.

(3.) In spite of objection by the lascar they opened the sluice again and left. The lascar closed it again. Then at 11 a. m. on the 29 all the eight accused before the lower Court, including these petitioners appeared again and in the presence of accused 7 and 8, who are said to have told P. W. 5 that he might do what he liked, the other accused opened the sluice for the third time. These facts except that accused 5 and 6 took any part in these events, have been considered proved by the two Courts. The objection now raised by the petitioners is twofold; first, that the trial was illegal because the petitioners should not have been tried for the events of the night of the 28 and of the morning of 29 November at the same trial as they did not form parts of the same transaction; and second, that the conviction of accused 7 and 8 by the appellate Magistrate under Section 430 read with Section 34 is illegal because they were only charged, under Secs.430 and 114 with abetment. As to the first objection it depends upon whether, upon a reasonable understanding of the facts the events of the 28 night and of the 29th morning can be said to have formed parts of the same transaction. Learned Counsel at one point of the argument cited the decision in In re. Samiullah Sahib A.I.R. 1927 Mad. 177, which he later admitted was not applicable. That was a joint trial of several persons for fishing in a tank at the same time and it was held that, although they were fishing at the same time, they were not participants in the same transaction because each was fishing on his own account.