VADAVALLI NARASIMHA RAO Vs. VAYYANNA RAO

JUDGEMENT

(1.) The petitioners were convicted by the Stationary Sub-Magistrate, Ellore, of an offence under Section 430, Indian Penal Code, and sentenced to pay a fine of Rs. 50 each. On appeal the Sub-Divisional Magistrate, Ellore, confirmed the conviction but reduced the fine to Rs. 25 each. This revision petition is preferred by the accused, who contend that the conviction under Section 430, Indian Penal Code, was wrong.

(2.) The facts are simple. The accused hold lands under a tank which receives its supply from a channel called the Dendulur channel. The complainant in this case was the holder of land irrigated from another tank which also receives its supply from the same channel, but the supply channel to the accused's tank takes off from the main channel at a point higher up than the supply channel of the complainant's tank. In these circumstances on the 2nd August, 1937, the accused put a bund across the main channel just below the point at which the supply channel to their tank takes off, and thereby diverted all the water flowing in the main channel to their tank, preventing any water from going down to the complainant's tank. The bund was kept in position for at least a month and a half. There is evidence that the complainant's paddy crop which had been transplanted by that time withered over an extent of 15 acres and the rest of the crop was slightly affected. The accused set up a mamool by which they were entitled to bund up the main channel whenever it was necessary to take water to their tank, or, in other words, whenever it pleased then to do so. The learned Sub-Magistrate found that by putting up this cross-bund the supply of water to the complainant's tank was diminished and that the complainant had incurred a loss which was estimated at about 150 bags of paddy. He also held that the accused had not established their right to put up the cross-bund in the main channel. The learned Sub-Divisional Magistrate confirmed these findings but considered that the extent of the damage to the complainant's lands appeared to be exaggerated. On this ground he reduced the fines.

(3.) It is urged for the accused that their act does not amount to an offence under Section 430, Indian Penal Code, because they used the water for agricultural purposes and there was no diminution of the supply available for agricultural purposes. Reliance is placed upon a judgment of mine in Crl. R.C. No. 568 of 1937 (not reported). In that case I held that the bunding up of the channel was on the findings an act of mischief because the utility of the channel as such was thereby destroyed. I have held that it was not on the findings possible to hold that an offence under Section 430, Indian Penal Code, had been committed, because the act of bunding up the channel did not and could not cause any diminution of the supply of water for agricultural purposes and the quantity of water available for agricultural purposes was unaffected. I therefore altered the conviction to one under Section 426. That decision, in my opinion, was wrong. It was not brought to my notice that a Full Bench of this Court so long ago as 1876 Ramakrishna Chetti V/s. Palaniyandi Kudantbar (1876) I.L.R. 1 Mad. 262 (F.B.) held that it is no part of the definition of the offence of causing a diminution of water-supply for agricultural purposes that the act of the accused should be an act of wanton waste. The principle upon which my judgment in the Revision Case referred to was based, was that unless water was wasted, the offence would not be one under Section 430. But in the light of the judgment in Ramakrishna Chetti V/s. Palaniyandi Kudanibar (1876) I.L.R. 1 Mad. 262 (F.B.), it is clear that that was wrong. It is sufficient for the purposes of Section 430 that the supply of water available for a particular person or class of persons should be diminished by the act of the accused. There is no doubt about the fact that the act of the accused in throwing a bund across the main supply channel was an act of mischief, since that completely destroyed the channel, from the complainant's point of view, rendering it useless as a supply channel. This has been held by myself in the case of Vadlapatla Nariah V/s. Chelsani Narasayya (1933) M.W.N. 427 and there are many other cases in which the same proposition has been stated. It is too obvious to need any authority.