JOY KRUSHNA MOHANTY Vs. EMPEROR

JUDGEMENT

(1.) The petitioners have been convicted by a Magistrate of the Third Class under Section 290, I.P.C., and each sentenced to pay a fine of Rs. 15. An appeal against their conviction has been dismissed and they have moved this Court in revision on the ground that the acts found to have been done by them did not come within the definition of a public nuisance in Section 268, I.P.C., and are not punishable under Section 290. The appellate judgment is very brief and I will state the facts a little more fully. The Mahanadi river, as it nears the sea, divides into a delta of channels which form loops and branches which fork and rejoin eventually entering the Bay of Bengal.

(2.) The water of these mouths of the Mahanadi is said to be tidal for some miles inland from the sea. One of these branches passes along the western boundary of villages Kusum, bar and Sundara bearing thana Nos. 171 and 178 in police station Kakatpur of Puri District. West of the stream which is called Padapada at about that point is village No. 177 Barjanga and further west and north are other villages. To the east of this stream there used to be an embankment running roughly from north to south which prevented flood water from spreading over the lands of villages Kusumbar and Sundara. The embankment is said to have been very old, but within recent years it was breached by heavy flood.

(3.) The date of this breach is stated by the prosecution to have been in 1933 and stated by the defence as in 1937. Now the accused, who are residents of Kusumbar and Sundara, wished to repair the breach in the old embankment and this was objected to by the inhabitants of the villages on the west of the stream who said that the flood water ought to escape eastwards through the breach so as to rellieve the flooding of the fields in their villages. In this state of things there was a proceeding under Section 144, Criminal P.C., as it was reported that there was a danger of a breach of the peace. The Magistrate passed an order restraining the people of Sundara from re-erecting the old bund.