Pandrang Row, J.
1. The petitioners, twelve in number, were convicted of the offence of mischief punishable under Section 430, Penal Code; and sentenced each to pay a fine of Rs. 20 by the Stationary Sub-Magistrate of Vizianagaram. That judgment was confirmed on appeal by the Sub-divisional Magistrate of Vizianagaram. The act alleged against the petitioners is the closing of the middle sluice of the tank known as the Baddi Tank in Gumadam village on 17th September 1937 after the same had been opened by the Amin of the Vizianagaram estate for the purpose of irrigating the lands of one Sheik Hussain of Pedda Majjipalam, registered tinder that tank as wet lands. The actual closing of the sluice after it had been opened for the above purpose has been established beyond doubt and it is not seriously contended before me that the petitioners were not responsible for closing the sluice in question. The only point that has been urged before me is that the act does not constitute the offence of mischief as there was no criminal intention in the closure of the sluice and that the closure was in the exercise of a bona fide right for the purpose of protecting the petitioners' own fields from suffering for want of water, the opening of it being according to the petitioners, calculated to benefit certain banjar lands of one Achyutaramaraju which were not entitled to receive water from the tank. Sheik Hussain has no doubt, registered wet lands to which he is entitled to get water from the tank, but the contention of the petitioners has always been that the opening of the sluice on this particular occasion was really not to supply water to the registered wet lands of Sheik Hussain, P.W. 6, but really to supply water to the banjar lands of Achyutaramaraju which had recently been brought under cultivation from the tank to which they were not really entitled. This particular defence does not appear to have received the attention which it deserved at the hands of either of the Courts below.
2. It may be that the Amin of the estate is entitled on behalf of the estate to distribute water according to custom. Whether on this particular occasion the opening of the sluice was in accordance with the custom is a point which has not been decided by the Courts below. In particular the contention of the petitioners that the opening of the sluice by the Amin on this particular occasion was not in accordance with the custom has not been definitely negatived. There seems to be some substance in the contention on behalf of the petitioners that the irrigation of P.W. 6's wet lands was not being effected by the opening of the middle sluice but through the surplus weir and the objection that was taken to the opening of the sluice was that P.W. 6's wet lands should not get water from the middle sluice but that they should get water according to mamul only from the surplus weir; the contention was that the opening of the middle sluice was unnecessary for this purpose but was resorted to only with the object of providing water for the banjar lands which had been recently brought into cultivation and which were not entitled to get water.
3. This contention does not appear to be a mere pretence. It appears to be a bona fide contention on the part of the petitioners; and unless it can be said that the opening of the middle sluice was according to custom, it cannot be said that the closing of it was with the intention of causing any wrongful loss or wrongful gain. It is clear that the closure was animated by the object of protecting the lands of the petitioners themselves which had been jeopardized by the opening of the middle sluice. In these circumstances, it can hardly be said that the act of closing the middle sluice was 'mischief' as defined in the Penal Code. As in many other cases the Courts below have failed to realize the importance of deciding whether any unlawful or dishonest intention has been established. It is not every interference with the distribution of water that constitutes mischief under the Penal Code. It is only interference which cannot be justified by the assertion of a bona fide right that would constitute mischief. Whereas in this case there was a bona fide contention on the part of the petitioners that the opening of the sluice was contrary to mamul and would lead to serious diminution of water supply to their own registered wet lands, it is impossible to say that the closure of the sluice was with the intention of causing any wrongful loss or wrongful gain. The closure was obviously brought about in the bona fide belief that otherwise their fields would suffer from want of water and that they would lose their crop. An act like this which is done as it were to protect their own property and in the reasonable belief that no unlawful harm or damage was going to be caused cannot be regarded as an act constituting a criminal offence. The dispute between the parties was really one of a civil nature which ought to have been taken to the Civil Court by the parties concerned.
4. The fact that the Amin interfered and exercised his own authority in the matter of the distribution of water which was reasonably regarded as an interference with existing rights will not change the aspect of the case into a criminal one. The Courts below ought to have paid regard to this aspect of the case and declined to take notice of what was really and essentially a civil dispute. The convictions of the petitioners and the sentences imposed upon them are accordingly set aside and they are acquitted. The fines if paid by them should be refunded.