1. The petitioners before us have been convicted by the Deputy Magistrate of 24-Parganas by his order, dated the 29th February, 1928, under Section 76 (a) of the Bengal Embankment Act (II of 1882) and have each been sentenced to pay a fine of Rs. 500 or, in default, to suffer rigorous imprisonment for four months, and they have been further directed under Section 79 of the said Act to remove a certain cross dam within one month from the date of the order in question. There were two appeals to the Sessions Judge by the two petitioners, but the Sessions Judge by his order, dated the 10th April, 1928, dismissed the said appeals.
2. The facts involved in this application, shortly stated, are as follows: A complaint was preferred by the Assistant Engineer, Irrigation Department, Tolly's Nulla Sub-Division, to the effect that the petitioners had erected a bund across a khal known as the Bantola khal and that the said bund had prejudicially affected the Bidyadhari river. The petitioners were then summoned to answer a charge under Section 76 (a) of the Bengal Embankment Act being Act II (B.O.) of 1882.
3. It is alleged on behalf of the prosecution that the said Bidyadhari river is a tidal river which runs into the Matla river which in turn discharges into the Bay of Bengal; that the Bantola khal starts from the Garangacha sluice of the schedule D embankment No 96 and takes a north-east course and falls into the Bidyadhari river and it is, in fact, spill channel of the Bidyadhari river; that the suburban sewage outfall channel of the Corporation of Calcutta falls into the Bantola khal about three furlongs to the west of the junction of the Bantola khal with the Bidyadhari river and that the schedule D embankment No 96 (which has got three sluices) runs in a south-western direction from near the suburban sewage outfall channel about 1 1/4 miles from the junction of that channel with the Bantola khal; that the accused, who are the petitioners before us, erected or caused to be erected or permitted to be erected sometime before the monsoon in 1925 a cross bund across the Bantola khal and diverted the Bantola into the Boyernala khal and that the said acts of obstruction and diversion were likely to interfere with or impede the Bidyadhari river which is a public water-course and also the public embankment schedule D No. 96. On behalf of the defence it was alleged that the Bantola and the Boyernala khals belonged to the petitioner No. 1 and that the bund in question was necessary for the protection of the said petitioners' properties.
4. The present Rule has been granted on grounds Nos. II, III, IV, V, VIII and IX in the petition before us; but, as a matter of fact, two grounds were really pressed before us (1) that the provisions of Section 242, Criminal Procedure Code, were not complied with and (2) that Section 76 of Act II of 1882 has no application in view of the fact that the Bidyadhari river is subject to the operation of the Canal Act (V of 1864; and, therefore, under Section 91 of Act II of 1882 the last-mentioned Act has no application.
5. As to the first ground, the record appears to show, taken along with the explanation submitted by the Magistrate, that the provisions of Section 242, Criminal Procedure Code, were, in fact, complied with; and that being so we see no reason to interfere on the first ground.
6. As regards the second ground, there is more substance in it, and, in fact, had the charge only referred to the impediment caused to the Bidyadhari river, it would have been necessary to give effect to the contention urged in favour of the petitioners, for, under Section 91 of the Embankment Act, 'nothing in this Act shall apply to any watercourse which is under the operation of the Canal Act'; and, as the Bidyadhari river is under the operation of the Canal Act, s 76 of the Embankment Act could have no application in so far as any impediment to that river was concerned. The offence complained of in this case is 'erecting or wilfully permitting to be erected or causing to be erected a cross bund across the Bantola khal and thereby interfering or likely to interfere with or impede the Bidyadhari river--a public water-course--as also the public embankment (schedule D embankment No. 96), and diverting the water of the Bantola khal into the Boyernala khal.'
7. It appears, therefore, that there were three matters included in the charge, though the charge itself is not very happily worded: (1) impeding the Bidyadhari river; (2) interfering with or impeding the embankment schedule D embankment No. 96, and (3) diverting the water of the Bantola khal into the Boyernala khal.
8. Under Section 91 of the Embankment Act, the first part of the charge, as indicated above, must fail since the Bidyadhari river comes under the Canal Act. Bat the lower Courts have found that the dam erected across the Bantola khal has, in fact, interfered with the sluices attached to the embankment schedule D embankment No. 96; and there is some evidence in support of this finding. In so far as this portion of the charge is concerned, taking all the circumstances into consideration we do not think it necessary to interfere in revision.
9. The remaining portion of the charge has not been considered independently by the lower Courts though there is evidence in support of it and it is admitted that the water of the Bantola khal has in fact been diverted by the dam which, it appears on the evidence, has been constructed by the accused,
10. In view of the fact that much the most important portion of the charge against the accused has failed and further that no action appears to have been taken against the accused till long after the completion of the dam and that incidentally they will incur considerable loss, we think that the ends of justice will be sufficiently met if we reduce the sentence on each of the petitioners to a fine of Rs. 50 or, in default, to one month's simple imprisonment. The order under Section 79 of the Embankment Act, will, however, stand. The balance of the fine, if paid, will be refunded.