HATU NAIK Vs. EMPEROR

JUDGEMENT

(1.) A point of some importance is raised by this Rule. That point is indicated by ground 3 which is in the following terms: For that in the absence of any evidence as to the original height of the bundh the conviction is bad in law.

(2.) It appears that petitioner 23, Pulin Behari Dutt is one of the owners of an embankment called the Taladiha zamindari embankment which is situated in an area in respect of which a notification has been made under Section 6, Bengal Embankment Act, 1882. The date of this notification is 11 March 1901. In 1926 there were floods of exceptional gravity in the District of Midnapur; as a result of these floods the embankment was breached at several places. Petitioner 23 and also some of his tenants applied to the Collector for permission to repair the bund up to the old level. The Collector on 5 April 1928, gave permission to repair the breaches up to the level of 19 . A further application was made on 4 January 1929 to the Collector asking him to give permission to raise the bund to the original level which was alleged to be more than 19 . On 23 April, the Collector gave permission for the bund to be repaired to a level of 19 for the 1 mile, 20 for the 2nd mile, and 21 for the 3 mile and 22 for the 4 mile. There is evidence to the effect that all the petitioners with the exception of petitioner 23 were seen working on the bund with the result that it was raised to levels in excess of those prescribed by the Collector's order. There is also evidence that persons working on the bund refused to obey the Irrigation Department Officer who called upon them to desist.

(3.) Further there is the evidence of aP.W.D. Surveyor that various sections of the bund have been raised to heights exceeding those for which the Collector has granted permission. On these materials the petitioners were served with notices alleging that they had raised the embankment above the original level. The notices further informed them that unless they levelled down the embankment by a certain date they would be prosecuted. Nothing was done by the petitioners and in due course they were prosecuted and convicted by the learned Magistrate of an offence punishable under Section 76(b), Bengal Embankment Act, namely, of having without previous permission of the Collector added to an existing embankment and petitioner 23 was ordered to pay a fine of Rs. 30 or in default to suffer rigorous imprisonment for one month and the other petitioners were ordered to pay a fine of Rs. 15 each or in default to suffer rigorous imprisonment for a fortnight. The Magistrate further made an order under Section 79 directing the petitioners to remove the addition made to the zamindari embankment "beyond the permissive level sanctioned by the Collector within one month from the date of the order. The petitioners then moved the High Court and it appeared that the proceedings before the Magistrate had been vitiated by certain irregularities of procedure. The High Court accordingly set aside the convictions and ordered the petitioners to be retried, the retrial to begin from the stage immediately preceding the examination of the accused persons under Section 342, Criminal P.C. The petitioners were retried and were again convicted. The learned Magistrate sentenced petitioner 23 to pay a fine of Rs. 40 or in default to suffer rigorous imprisonment for one month and the other petitioners to pay a fine of Rs. 20 each or in default to undergo rigorous imprisonment for one week. It is against these convictions and sentences that this Rule has been obtained.