Raghunath Thakur and Others vs Emperor

Rowland, J.—The petitioners have been convicted by a Second Class Magistrate of offences under Sections 430, 325 and 323, I. P.C., and an appeal from the conviction has been dismissed by the Sessions Judge. They have moved this Court in revision, and the application has been ordered to be heard as regards the correctness of the conviction u/s 430, I. P. C.

The substantial grounds taken in the petition with reference to Section 430 are grounds 1 and 2 which run as follows:

For that the conviction of the petitioners u/s 430, I. P.C., is bad in law inasmuch as there was no malicious object on the part of the petitioners.

For that the evidence of the complainant being that if the bandh had not been cut the whole paddy crop of the petitioners of about 1 to 1 1/2 bighas would have been destroyed the conviction u/s 430, I. P.C., is not sustainable.

The learned advocate for the petitioners has referred to three cases which it is said support the principle that where a dam erected by the complainant was cut by the accused not to take a supply of water but to save their own crops this would not amount to an offence u/s 430, Penal Code. The earliest of these cases Nafar Chandra v. Helaluddin Mondal 8 C.W.N. 370 was decided ex parte by a Judge of the Calcutta High Court sitting singly; and each of the other cases relied on is the decision of a single Judge. No doubt, these decisions and the opinions of these learned Judges are entitled to the greatest respect. But whatever may have been the views expressed by individual Judges, there is an authoritative ruling on the essentials of the section in the Full Bench decision of the Madras High Court in Ramkrishna Chetti v. Palaniyandi [1876] 1 Mad. 262 where the Judges observe:

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. u/s 430, Penal Code, the physical requisites of the act are the doing of an act which causes, or to the doer''s knowledge 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, and it matters not that he claims to set up such a right if the facts are so clear that the claim is manifestly only an additional wrong. It is for judicial tact to distinguish where the case is sufficiently doubtful to prevent the inference of a wrong intent.

In the case before me there is no doubt that the bandh in question was the property of the complainant, that it held water which he required for the irrigation of his fields, that the accused by cutting the bandh let out some of the water and it would violate the most elementary principles of mathematics to hold that the supply of water was not thereby diminished. The result is that the rule is discharged.