CHIDAMBARAM PILLAI Vs. MUHAMMAD KHAN SAHIB

JUDGEMENT

(1.) The accused were convicted by the Stationary Magistrate of Palghat under Section 430, Indian Penal Code and this conviction has been upheld on appeal. The facts found are that they entered on the lands of the complainant, cut 3 bunds which had been erected in a channel that runs through the complainant s land with the result that the water in that channel ran down another channel off the complainant s land and was utilised by the 1st appellant for sale to ryots holding lands lower down. Dr. Swaminathan applies to us to set aside the conviction and sentence on various grounds, the two chief grounds being that where water is in fact utilised for agricultural purposes and not allowed to run to waste, no offence under Section 430, I.P.C. is committed, the other, that even if it would have been an offence, if the complainant had intended to utilise the water for his own fields, it is not an offence if the indention was to sell the use of it to the other persons. The first ground is one of importance, for it. amounts to this, that the section is only intended to penalise waste) of water and not the deprivation of a parson having the right to use it, The language of the section is as follows: Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property or for cleanliness or for carrying on any manufacture....

(2.) The section begins by saying whoever commits mischief," and it is therefore necessary to ascertain from Section 425 what mischief is, Section 425, I.P.C. is as follows;- " Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person causes 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" commits "mischief".

(3.) Now there cannot be any doubt that the removal of a bund is such a change in the situation of property as destroys its utility in a case where that bund has been erected for the purpose of holding up water, and that a person who so removes a bund must know that he is likely to cause wrongful loss to any person who is entitled to the use of that water. It has been found by a Civil Court that the complainant in this case is entitled to the use of the whole of the water in the channel in question, anl that finding has been accepted by both the Magistrates. Prima facie therefore on the facts, an offence of mischief is made out: but it is argued that there being no waste there is no mischief under Section 430. I see no reason why the legislature should be supposed to have wished to import this limitation. Further the language of the section is against it. The water referred to is not only for irrigation but is for other useful purposes and I think that these clearly have reference to the actual utilisation of the particular water by particular persons and animals who are deprived of it by the mischief complained of. Such supply for drinking and cleanli-ness is a common system in the Presidency. Again with regard to any manufacture it is impossible to argue that it means that a court should have to find that no part of the water was used for any manufactory anywhere. Obviously it must mean the particular manufactory which was deprived of the water.