R.S. Bindra, J.C.
1.The facts relevant to this revision petition filed by nine convicts Under Sections 148 and 427 of the Indian Penal Code are that the Deputy Commissioner, Manipur, settled a part of Naibi river in favour of the complainant T. Mohori Singh, the respondent No. 2 herein, and five others on 6-5-1962 for the purpose of pisciculture, and Mohori Singh and his associates constructed embankments for rearing fish. The Chief Commissioner vacated the settlement order on 7-8-1962 in an appeal filed against the same and directed the complainant and others to remove the fish fingerlings from the river by 7th of September 1962. On the morning of 9-9-1962, according to the allegations of the complainant, all the nine petitioners went to the site of the embankments, armed with Dao and spades, and made cuts therein. The complainant and one Indrajit Singh, who alone were present at the site, registered a protest. The petitioners charged at them and so the two victims had to flee from the place to save their lives. The petitioners made such extensive cuts in the embankments that all the fish fingerlings were washed away by the gushing waters. Aggrieved by the action of the culprits, Mohori Singh filed a complaint against them under divers charges. The trial Magistrate convicted each one of them Under Sections 148 and 427 I.P.C. and sentenced them to a fine of Rs. 50A on each count. On failure to pay the fine on either count, the convicts were directed to suffer two months' rigorous imprisonment
2. The convicts lodged an appeal in the Court of the Sessions Judge challenging the verdict of guilty as also the sentences imposed on them. The appeal came up for hearing before the Additional Sessions Judge, Shri P. N. Roy, who rejected the same by his order dated 30th May 1968 holding that the convictions were well founded and the sentences imposed erred, if at all, on the side of leniency. It may be mentioned here that the loss suffered by the complainant as a consequence of the mischief done by the petitioners was stated to be of the order of Rs. 20,000/-.
3. Shri R. K. Manisana Singh, appearing for the petitioners, did not challenge the finding of fact concurrently reached by the Courts below that on the morning of 9-9-1962 the petitioners had made cuts in the embankments raised by the complainant as a result of which the fish fingerlings were washed away. The only point urged by him was that the act of the accused does not fall within the definition of expression 'mischief' and as such they had not been guilty of any offence. The expression 'mischief' is defined in Section 425, Indian Penal Code as under:
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.
The exact argument raised by Shri Manisana Singh was that since the complainant had no right to occupy the part of the river which had been settled with him by the Deputy Commissioner beyond 7th September, 1962, in view of the order made by the Chief Commissioner in appeal, and since the embankments were cut by the petitioners on 9-9-1962, two days after the dead line, it could not be stated that the petitioners had occasioned any 'wrongful loss' to the complainant. The expression 'wrongful loss' is defined in Section 23, Indian Penal Code as the loss by unlawful means of property to which the person losing it is legally entitled. It was the contention of Shri Manisana Singh that on 9-9-1962 the complainant was not legally entitled to the part of the river settled with him and so there was no wrongful loss occasioned to him by the petitioners when they cut the embankments and the fish was washed away. I am not satisfied about the validity of the argument. It is for the reason that even on 9-9-1962 the fish in the river was undeniably the ownership of the complainant and so he was legally entitled to it, and as such the petitioners had no legal right to behave in a way that the fish was destroyed or placed beyond the effective control of the owner, the complainant. Wrongful loss was occasioned to the complainant not by the mere fact of cutting the embankments, of which, it may be argued, he was no longer the owner, but by what happened to the fish as a result of the cutting made in the embankments. The petitioners could, at the best, take some legal steps forcing the complainant to vacate the embanked part of the river by removing the fish thorefrom after the period mentioned in the Chief Commissioner's order had run out. They had certainly no legal sanction to take the law into their own hands and behave in such a way that the complainant be put to a tremendous loss. Consequently, I have no misgivings that the complainant had been put to a wrongful loss in the matter of fish of which he was the legal owner.
4. An identical conclusion can be reached by another process of reasoning. The expression used in Section 425, Indian Penal Code is 'wrongful loss or damage'. The preposition 'or' of that expression is clearly disjunctive. The adjective 'wrongful' goes only with the word 'loss' and not 'damage'. True, that judicial interpretation appears to favour the view that the collocation of damage with wrongful loss indicates that it shorild not be damage simpliciter but wrongful damage. Accepting that as reasonable interpretation, I still see no escape from the conclusion that it was a wrongful damage which the petitioners occasioned to the complainant by making a cut across the embankments which resulted in the fish being washed away. Therefore, the act of the petitioners beyond doubt fell within the mischief of Section 427 because the loss was for an amount exceeding Rs. 50/-.
5. As a result, I uphold the conviction of all the nine petitioners both Under Section 148 and Section 427, Indian Penal Code. Shri Manisana Singh, I believe, overshot the mark by pleading that the fine of Rs. 50/-imposed on the accused on each count was excessive. In raising that argument he completely lost sight of the fact the loss occasioned to the complainant was as colossal as Rs. 20,000/-. Hence, I reject the revision in toto on maintaining the convictions and the sentences imposed by the trial Court. In the contest of the facts proved, I am not inclined to take recourse to Probation of Offenders Act.