1. A point of some importance is raised by this Rule. That point is indicated by ground 3 which is in the following terms:
For that in the absence of any evidence as to the original height of the bundh the conviction is bad in law.
2. It appears that petitioner 23, Pulin Behari Dutt is one of the owners of an embankment called the Taladiha zamindari embankment which is situated in an area in respect of which a notification has been made under Section 6, Bengal Embankment Act, 1882. The date of this notification is 11th March 1901. In 1926 there were floods of exceptional gravity in the District of Midnapur; as a result of these floods the embankment was breached at several places. Petitioner 23 and also some of his tenants applied to the Collector for permission to repair the bund up to the old level. The Collector on 5th April 1928, gave permission to repair the breaches up to the level of 19'. A further application was made on 4th January 1929 to the Collector asking him to give permission to raise the bund to the original level which was alleged to be more than 19'. On 23rd April, the Collector gave permission for the bund to be repaired to a level of 19' for the 1st mile, 20' for the 2nd mile, and 21' for the 3rd mile and 22' for the 4th mile. There is evidence to the effect that all the petitioners with the exception of petitioner 23 were seen working on the bund with the result that it was raised to levels in excess of those prescribed by the Collector's order. There is also evidence that persons working on the bund refused to obey the Irrigation Department Officer who called upon them to desist.
3. Further there is the evidence of aP.W.D. Surveyor that various sections of the bund have been raised to heights exceeding those for which the Collector has granted permission. On these materials the petitioners were served with notices alleging that they had raised the embankment above the original level. The notices further informed them that unless they levelled down the embankment by a certain date they would be prosecuted. Nothing was done by the petitioners and in due course they were prosecuted and convicted by the learned Magistrate of an offence punishable under Section 76(b), Bengal Embankment Act, namely, of having without previous permission of the Collector added to an existing embankment and petitioner 23 was ordered to pay a fine of Rs. 30 or in default to suffer rigorous imprisonment for one month and the other petitioners were ordered to pay a fine of Rs. 15 each or in default to suffer rigorous imprisonment for a fortnight. The Magistrate further made an order under Section 79 directing the petitioners to remove the addition made to the zamindari embankment 'beyond the permissive level sanctioned by the Collector within one month from the date of the order. The petitioners then moved the High Court and it appeared that the proceedings before the Magistrate had been vitiated by certain irregularities of procedure. The High Court accordingly set aside the convictions and ordered the petitioners to be retried, the retrial to begin from the stage immediately preceding the examination of the accused persons under Section 342, Criminal P.C. The petitioners were retried and were again convicted. The learned Magistrate sentenced petitioner 23 to pay a fine of Rs. 40 or in default to suffer rigorous imprisonment for one month and the other petitioners to pay a fine of Rs. 20 each or in default to undergo rigorous imprisonment for one week. It is against these convictions and sentences that this Rule has been obtained.
4. Now Mr. Basu maintains that there is no evidence to prove what the original level of the bund was. There certainly is evidence to show what the level of the bund was in 1926 and the trying Court has arrived at a finding on the matter, namely, that it was below 19'5' for the 1st mile and below 22' for the 2nd, 3rd and 4th miles. These levels have been exceeded in consequence of the work which is said to have been done by the petitioners. Mr. Basu argues that this is not enough and he says that existing embankment' must be taken to mean an embankment as it existed at the date of the notification, that is to say in 1901. There is admittedly no evidence on the record as to the state of things in that year. I find myself unable to agree with this construction of the section. Authority is against Mr. Basu. In the case of Ramnath Pandit v. Emperor  33 Cal 413, Holmwood and Sharfuddin, JJ., held that 'existing embankment' in Clause (b), 8. 76 bears the same interpretation as 'existing embankment' in Clause (a), that is an embankment existing at the time the addition is made. Following that case Richardson and Shamsul Huda, JJ., in the case of Emperor v. Lakshi Kanta Hazra AIR 1919 Cal 669, expressly laid down that 'existing embankment' means the embankment existing when the addition is made and not the embankment as it existed at the date of the notification under Section 6. As against these authorities Mr. Basu has relied on the judgment of M.N. Mukerji, J., in dealing with two unreported cases: References Nos. 48 and 49 of 1929. In those cases Mukerji, J., sitting singly accepted the references made by the learned Sessions Judge of Midnapur and set aside the convictions under Section 76(b).
5. No reasons however are given for the decision and the letter of reference raises several points any one of which, if accepted would justify the Court in setting aside the conviction. The only relevant paragraph in the letter of reference is para. (c) where the learned Judge submits that unless there be evidence as to what the height was before the additions and the height after the additions there can be no conviction under Section 76(b), Act 2. That does not imply that the learned Sessions Judge is putting forward a submission that the state of things to be considered is the state of things at the date of the notification. Nor does the judgment of the Court imply that it accepted the view for which Mr. Basu has been arguing. On this point it is really sufficient if I say I cannot accede to the petitioners argument, namely, that the petitioners were entitled to raise the bund to the height to which it was in 1901 and there being no evidence of its height in that year there is nothing to show that height has been exceeded. I think I should add that although the view put forward by Mr. Bhattacharji for the Crown may lead to certain difficulties, it appears to me to be the right one, namely, by 'existing embankment' is meant the embankment as it existed at the date when the additions were made, that is to say, that permission of the Collector is necessary even for repairs if these repairs involve additions to the embankment in the state that it is in when these repairs begin: whether the department would ever commence proceedings against persons who have merely restored the bund to the state it was in before it was damaged is a question on which I do not feel called to express an opinion. But having regard to the language of Section 76(b) and the authorities I feel constrained to hold that Mr. Bhattacharji's construction is the correct one.
6. I do not think that there is any substance in any other of the grounds raised by the petitioners. I think there is ample material on the record from which the Court could infer that petitioner 23 was a party to the illegal raising of the level of the bund even though none of the witnesses called could swear to having seen him working on the site. Similarly I see no reason why the order made under Section 79 of the Act should be set aside. In these circumstances the Rule must be discharged and the convictions and sentences affirmed.