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.
4. Turning to decisions, Dr. Swaminathan was able to adduce one case which he claimed to be in support of his contention Crl. R.C. No. 134 of 1881 reported in 1 Weir 507. The passage in the judgment relied on is to this effect: 'The act of the accused in diverting water to their own fields did not diminish or tend to diminish the usefulness of the water. It merely diverted it to the use of the defendant's fields instead of to that of the com-plainant.' Taken apart from the facts of the case, this language seems to lend some support to the learned counsel's contention. But the facts in that case where the channel was a Government channel and was not shown to be appropriated to the use of the complainant to the exclusion of the defendants through whose fields it passed. There was no evidence that any loss had been sustained by the complainant and as the sole right of the complainant was to have his accustomed supply from Government, it followed that the act of the accused in taking water, whether they had a right to do so against Government or not, did not cause wrongful loss to the complainant, and as it was utilised by the accused, did not cause wrongful loss to the public. This case therefore is no authority for the proposition contended for.
5. The leading case in our Court on Section 430 is Ramakrishna Chetty v. Palaniyandi Kudumbar I.L.R. (1876) M. 262. That was a decision of the Full Court, which laid down as follows :-'It is not part of the definition of the offence that the act of the accused should be in common language a mere wanton act of waste. Under Section 430, I.P.C. the physical requisites of the act are the doing of the act which causes or is likely to cause a diminution of supply. He also fulfils the mental requisites when he does this with intent to cause wrongful loss, and the intention is properly held to be such when he takes it without any sort of right', This case clearly establishes two propositions that the taking of water, which can only mean taking without any sort of right, is within the section and that such taking evidences the intention to cause wrongful loss. This decision was applied in a case Chengama Naidu v. Emperor (1911) 2 M. W.N. 349 where the Court held that the petitioners in taking water in violation of the order as to turns issued by the Tahsildar so as to cause a diminution of supply to other ryots, were guilty of an offence under Section 430, I. P.C. The same view was taken by the High Court of Calcutta in Emperor v. Sheik Arif I.L.R. (1908) C. 437, The accused in that case cut the embankment of a water channel in order to irrigate their own fields and thereby deprived the complainant who owned a factory of the use of the water. One of the learned Judges held that an offence under Section 430, I. P.C. had clearly been committed; the other learned Judge had some doubts whether, in view of the claim of right, the matter should have been disposed of in the Criminal Court. He did not however dissent from the conviction under Section 430, I. P.C. Neither of the learned Judges had any doubt that, in the absence of a bona fide claim of right, the facts would constitute an offence under Section 430, I.P.C. The learned Counsel's contention therefore fails on this point.
6. The next point urged is that the water was not being supplied for agricaltural purposes. I asked the learned Counsel if he would contend that water taken down a channel and stored in a tank was not supplied for agricultural purposes and he was not prepared to go to this length. The evidence of the complainant shows that he put up the bunds to store water for irrigating his own lands and for selling it to other land owners. This point therefore fails on the facts. But, even if the water had been stored for sale to other land owners, I fail to see how it was not being supplied for agricultural purposes if those landowners used it for such purposes.
7. The petition fails on the point of law, but I think that the sentences are too severe. The fines will be reduced to one of Bs. 50 on 1st accused, Es. 100 on second accused and Rs. 5 each on accused 3, 4, and 5 who are coolies.
Abdur Rahini, J.
8. I agree.