1. In this case the two petitioners have been convicted under Section 430, I.P.C. for the particular form of mischief which consists in interfering with the water supply of a particular abad called Maheshwaripur Abad. It appears that the petitioner Ashutosh Ghoae is the manager and the petitioner Nripendranath Prodhinia is the naib of the landlords of this abad. It would appear to be a very large place which some few years ago was a jungle and which has been made cultivable to some extent by (sic) bunds to protect it from rivers which surround it on three sides. It is divided into three chaks and we are concerned with chak No. 3, it being the northernmost chak. In the abad there are a large number of small and also some large khals and the opening of the large khals is controlled or closed by sluice gates. The actual condition of the abad is not very clear at least to me upon the evidence and I cannot gather how many of the large khals are within the particular chak No. 3 with which we are concerned, but a number of small khals certainly are.
2. In the ordinary way during the rains these khals get filled with rainwater which is not saline or not so saline as the river water. No question seems to arise in this case of the letting in of river water upon these lands, but the complaint is this that after the rains and at a time when there are no crops or agricultural operations going on the maliks were mined to make some revenue out of the fishery right in these different khals. As regards the larger khals, they are fished by nets. As regards the smaller khals, for the first time, as the prosecution alleged, the maliks made up their minds to fish in a. special manner, that is to say, by cutting the bunds of the small khals so as to let out a considerable amount of water and then placing what is called khait or obstruction of some kind at intervals along the small khals and. bailing the water out into the next higher part. For purposes of fishing in this manner, the maliks for the first time emptied out all the small khals with the result that the tenants of chak No. 3 suffered from a scarcity of fresh water.
3. On the findings of the Courts below it would appear that the tenants and the landlords have of late been at daggers drawn, the landlords in some cases, having taken kabuliyats at a higher rent and the tenants refusing thereafter to pay. It would also appear from the findings that the method of fishing adopted was adopted for the first time on this occasion and the inferences of the Courts below are to the effect that the landlords being minded to pay back the refractory tenants adopted this particular method of fishing with a view to harass them with the intention that they should not have sufficient water either for their own domestic purposes or for their cattle or for agriculture.
4. Before we come to have a duty to consider whether the action of the landlords was a piece of intentional oppression or not, it is quite evident that before the landlords or their agents can be convicted under Section 430, I.P.C. it must be made absolutely clear that the landlords did not have a right to do what they did with reference to these small khals. If the tenants have no legal claim to have the water in those khals preserved in such a way that they can use it either for purposes of agriculture or otherwise then, while the conduct of the landlords may be very shabby or very objectionable, it is not an offence under Section 430 the essence of which is that they have intentionally inflicted wrongful loss upon the tenants. This was a point which was taken as appears clearly enough from the judgment of the Court of appeal. It appears that the matter was put in this way:
The main point urged before ma was that admitting for the sake of argument the facts alleged there has been no infringement of tenants rights so that there can be no offence under Section 430, Penal Code.
5. Then the learned Judge refers to certain rulings and says that they lay down the principle that for a conviction under Section 430 there must be some infringement of right resting in B by the act of A. That proposition urged on the part of the defence is incontestable and the appellate Court deals with the matter in the end in the following way:
The issue then comes to this. Did the appellants know they were likely to cause or did they intend to cause wrongful loss or damage by draining the khals ostensibly for fishing to complainant and other tenants? Did they at least know they were infringing a right of the tenants not to use the water for cattle and agriculture. I think these questions must be answered in the affirmative.
In abad areas entirely surrounded by bunds agriculture depends on their efficiency as much as it depends upon the soil, sun and rain.
It is also in evidence from P.Ws. that the maliks gave assurance to the tenants that they could use the water. I doubt that any such definite assurance was given, but that such an assurance was implied in the contract between enants and zimindars, I have no doubt. The cutting of an abad bund entirely without regard to the interests of the tenants is in my opinion an infringement of a natural right which is implicit in the kabuliyats.
6. In my judgment, this is much too summary a method to deal with what may well be a somewhat complicated question of the law of easement or profits. To my mind, if there is to be a conviction in this case on the ground that the tenants have a right that at all times of the year this water is to be kept for their use although the khals admittedly belong to the landlords and although the landlords have admittedly the right to settle them with fishermen in order to make a profit, it is necessary that the question of the nature of the tenants' right should be somewhat more carefully considered than it is easy to do in a police Court or as has been done in the judgment of the learned Court of appeal. To begin with, if one is to hold that something is implied in a contract between the parties, it is very necessary not only that the nature of the land should be most carefully explained with reference to the position of the khals where the larger khals are as well as the smaller ones, but the circumstances under which the contract was entered into and, above all, the contract itself if it is in writing must be proved and produced. In the present case, though it has been held to be a right implicit in the kabuliyat, I do not gather that the kabuliyat of the complainant or of anybody else has been so much as put in evidence. How it can be a natural right and at the same time a matter to be implied in the contract I do not quite understand, but it is evident to me that a very serious question of civil law has been dealt with in these criminal Courts in a somewhat cavalier manner and in almost complete absence of the necessary materials which would enable a lawyer to give an answer to the questions which are raised. In my judgment, a case of this sort can only succeed where the right infringed is reasonably clear and plain. If in a case of this kind a complicated question of civil law has to be considered before it can be decided whether the tenants have any actual right to this water or not, then the police Court is not only a very unsuitable place for the, discussion of such right but the prosecution would probably fail upon, the ground that the landlords might honestly have thought that they had the right which they claimed.
7. It appears to me that it is not possible to let this conviction stand and the proper course for these tenants, if they desire to assert a right to have the water in these khals kept in such a way as they can use it, is to take proceedings for an injunction in a civil Court or to take measures by which the rights of the parties can effectively be ascertained.
8. In my judgment, the rule must be made absolute, the conviction and the sentences must be sat aside the accused acquitted and the fines, if paid, must be refunded.
9. I agree.