1. This revision raises the question whether water in Municipal pipes can be the subject of theft. The two applicants, Mahadeo Prasad and Beni Prasad, are brothers and live in a house in Cantonments, which belongs to Mahadeo Prasad. They employed their younger brother Mangru, who was a pipe-layer overseer in Military Works Service, to put a water connection from the main water pipe into their house. This was done contrary to law without the permission, of, and indeed without the knowledge of, the Cantonment Authority and the Municipal Board. The tap being in the house no one has actually seen them taking water from it, but the Courts below were quite justified in inferring that they had not gone to the trouble and expense of putting in this connection and their having it in their house for a month and a half without making use of it and taking water from it. Haa they applied for permission to put in a tap in accordance with the rules they could have got permission, but they would then have had to pay water rate which they were trying to escape paying by these surreptitious proceedings. They might have been, convicted under the appropriate section of the Water Works Act or of the Municipalities Act or Cantonment Code, but the Authorities considering the offence as a serious one, preferred to charge them with theft of water under Section 379. Indian Penal Code, and on this charge they have been convicted and sentenced to a fine of Rs. 300 each. The convictions and the sentences have been upheld by the learned Sessions Judge in appeal.
2. It has been held, both in England and in India, that water when conveyed in pipes and so reduced into possession can be the subject of theft. The English case is that of Ferens v. O'Brien (1883) 11 Q.B.D. 21 : 52 L.J.M.C. 70 : 31 W. R. 643 : 15 Cox C.C. 332 : 47 J.P. 472, There water was conveyea to a colliery by means of underground pipes and then supplied to the houses of the workmen by means of branch pipes to which taps were attached, the workmen being allowed to take water from taps on payment of a fixed price. The accused was seen taking water from one of the taps without having agreed to pay for it. It was held that, under the circumstances, he could be convicted of larceny at Common Law for taking this water.
3. In the Calcutta case of Emperor v. Sheikh Arif 35 C. 437 : 12 C.W.N. 534 : 7 Cr. L. J. 367 it was held that water flowing in an open, though an artificial, channel could not be the subject of theft, and Ferens v. O'Brien (1883) 11 Q.B.D. 21 : 52 L.J.M.C. 70 : 31 W. R. 643 : 15 Cox C.C. 332 : 47 J.P. 472 was distinguished on the ground that in the latter case the water was confined in pipes and thereby reduced into the possession of the Water Company which supplied it.
4. In re Chockalingam Pillay 13 Ind. Cas. 819 : (1912) M. W.N. 119 : 11 M.L.T. 162 : 13 Cr. L.J. 131 was a case in which the water had been cut off from the natural source and conveyed through pipes, and thus reduced into effective possession. It was held both with reference to the English authority and to the definition of theft contained in Section 378, Indian Penal Code that it could be the subject of theft.
5. The present case is even stronger against the accused in as much as the water had not only been pumped, filtered and conveyed through pipes by the Municipal Board but was then, as I am informed at the hearing, sold by the Municipal Board to the Cantonment Authority, for supply to persons in Cantonments, at a price depending on the amount of water supplied.
6. After considering the authorities I am of opinion that the water in this case was in the possession of the Cantonment Authority and that the accused's act in taking it comes within the definition of theft.
7. I have also been asked to interfere on the ground that the sentences were excessive, but in the judgment of the Appellate Court it is expressly stated that no plea on the question of sentence was urged in that Court. The applicants are, therefore, not entitled to urge in revision that the sentences are too severe. I accordingly dismiss the applications of both accused.