Sambasiva Mudali and Others vs Emperor

Pandalai, J.—The petitioners who are six in number were convicted and sentenced as follows : Petitioners 1 to 4 (accused 1 to 4) u/s 430,

petitioners 5 and 6 (accused 7 and 8) u/s 430 read with Section 34; petitioners 2 and 3 (accused 2 and 3) also u/s 352. Petitioners 2 and 3

(accused 2 and 3) were fined Rs. 60 and all the others Rs. 50 each.

The conviction arose out of the act of the ryots of Theniluppai village, to which the petitioners belong, opening the sluice of the feeder channel

from the Cheyyar anicut and also in removing a mud dam which had been temporarily put up across a vellavari also taking off water from the same

anicut, but from the opposite bank. The object of the villagers was to take water to their own village tank fed by this sluice and by the vellavari,

and these acts were done against the orders of the Public Works Department which has the duty of regulating the distribution of water of this

irrigation system, in exercise of which duty the Sub-divisional Engineer had ordered that the sluice to the Theniluppai village should be closed so

that the water may flow down to two other village tanks, i. e., Nemili and Venkodu lower down. On the night of 28th November 1928 the Public

Works lascar, P. W. 1, and a number of ryots including P. W''s. 6 and 7 from the village of Alathur were watching the sluice and mud dam. The

allegation is that at 11 p. m. accused 1, 3, 4, 7 and 8 and some others arrived and at the instigation of accused 7 and 8 the others first removed the

mud dam and then opened the sluice. The lascar and the ryots of Alathur protested but could not do anything. After the Theniluppai villagers had

left, those who were watching repaired the damage first by restoring the dam across the vellavari and closing the sluice early next morning. At

about 7 a. m. accused 2, 5 and 6 (of whom 5 and 6 have been acquitted) came and wanted to open the sluice again.

In spite of objection by the lascar they opened the sluice again and left. The lascar closed it again. Then at 11 a. m. on the 29th all the eight

accused before the lower Court, including these petitioners appeared again and in the presence of accused 7 and 8, who are said to have told P.

W. 5 that he might do what he liked, the other accused opened the sluice for the third time. These facts except that accused 5 and 6 took any part

in these events, have been considered proved by the two Courts. The objection now raised by the petitioners is twofold; first, that the trial was

illegal because the petitioners should not have been tried for the events of the night of the 28th and of the morning of 29th November at the same

trial as they did not form parts of the same transaction; and second, that the conviction of accused 7 and 8 by the appellate Magistrate u/s 430

read with Section 34 is illegal because they were only charged, under Sections 430 and 114 with abetment. As to the first objection it depends

upon whether, upon a reasonable understanding of the facts the events of the 28th night and of the 29th morning can be said to have formed parts

of the same transaction. Learned Counsel at one point of the argument cited the decision in In re. Samiullah Sahib AIR 1927 Mad. 177, which he

later admitted was not applicable. That was a joint trial of several persons for fishing in a tank at the same time and it was held that, although they

were fishing at the same time, they were not participants in the same transaction because each was fishing on his own account.

If in this case the petitioners, the villagers of Theniluppai, may reasonably be said to have been each opening the sluice for his own purpose, this

case might be governed by that decision; but obviously the villagers were out on what was to them a common grievance, diversion of water from

their tank and to attain a common benefit, namely, to get water to their tank. The objection therefore that this was a case of several individuals

engaged each on his own personal account does not apply. But it is said that the acts of those who removed the mud dam and opened the sluice

on the night of the 28th and the acts of those who twice on the morning of the 29th did the same thing were independent acts and not parts of the

same transaction. I am unable to agree with this contention. Taking a reasonable and common sense view, the Theniluppai villagers wanted to open

the sluice which cut the water away from their tank. It was with that object that several of them including five of those petitioners came and actually

opened the sluice on the 28th. When it was found that that work was undone, some of them turned up again next morning and re-opened the sluice

and when it was again closed, these petitioners turned up again later in the morning and opened the sluice for a third time within a period of 12

hours. I am unable, on a fair view of these facts to regard them as distinct acts or independent adventures by different bodies of men each acting

independently of the other, The acts fall well within the description of a transaction given by a Bench of this Court in Chorajudi Venkatadri v.

Emperor [19l0] 33 Mad. 502, namely that a number of acts for which there is community of purpose or design and continuity of action may be

regarded as a transaction. There was here both community of purpose and continuity of action. The purpose was to take water to the Theniluppai

tank and the action, repeated and continued at three different not very distant times, was to open the sluice. I am therefore unable to say that

merely because the events of the 28th and the morning of the 29th were charged together, that was an irregularity. In my opinion the case is

covered by Section 239, Clause (d).

Another answer to the objection is that there really were no different charges in the case at all for different offences. A reading of the charge,

with which I will deal presently shows that the whole matter, namely, what happened on the 28th and what happened on the 29th morning, was all

put together as one offence. Therefore there is really no objection on the ground of different charges being joined which should not be joined.

There was in fact only one charge.

The next point, as to the conversion by the appellate Magistrate of the conviction of accused 7 and 8 from one under Sections 430 and 114 to

one u/s 430 read with Section 34 is in my opinion equally groundless. The decision in Padmanabha Panji Kannayya v. Emperor [1910] 33 Mad.

264 was relied upon to show that where a person who has been convicted of an offence has appealed, the appellate Court cannot, after acquitting

him of such offence, convict him of the abetment of such offence. That decision was pronounced in 1909. The learned Judges who pronounced it

say in the judgment that no authority was cited to them to show that the appellate Court had the power to convert a conviction for the principal

offence to one for abetment. This is the converse case. But since then, the decision of the Privy Council in AIR 1925 130 (Privy Council) has given

such wide application to the use of Sections 236 and 237 that decisions pronounced before that date to a contrary purport have ceased to be

binding. In that case the charge was for murder. The conviction was for an offence u/s 201, which was not charged. Their Lordships rejected the

argument that that conviction was wrong and founded their decision upon Sections 236 and 237. They simply say that a man may be convicted of

an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.

In this case the facts before the. Sub-Magistrate were that accused 7 and 8 bad come along with the other accused and had instigated them on

the night of the 28th to open the sluice and come again at 11 a. m. on the morning of the 29th and by their act shown that they were the principal

persons who took the responsibility for the whole thing. On these facts the Sub-Magistrate thought that the offence committed by these petitioners

(accused) was one u/s 430 read with Section 114. The appellate Magistrate thought Section 114 was not applicable to the case because there

was no proof of previous abetment, but he held that the facts proved amounted to the principal offence. I think he was right on that point. I do not

see what objection can be raised to this course in the face of Section 237 as interpreted by their Lordships of the Privy Council. It may be added

that this was not a case of converting a bare abetment to a conviction for the principal offence but the so called abetment was as described in

Section 114 itself by a man who is to be deemed to be the principal offender. The distinction between such a man and the principal offender, for

this purpose, is one of such a shadowy character that the conversion of his conviction from one to the other cannot be said to offend against any

reasonable construction of the powers given to the Court under Sections 236 and 237. I therefore think that this objection has no substance.

The only other point which arises is one upon the form of the charge. I have already said that the charge was only for one offence u/s 430

although there is a reference in the charge to both dates in the words on or about the 28th and 29th. It may be that, strictly speaking, there were

two offences but the whole charge regarded the acts of the petitioners as one and the question is whether there has been any prejudice due to that.

I have not been told, nor am I able to see, that any particular confusion in the minds of anybody has arisen from this particular matter. From the

evidence it is quite clear what it was that the petitioners were being tried for. No point at any time seems to have been made of the fact that the

petitioners did not know whether they had to answer for what they did on the 28th or what they did on the morning of the 29th. According to the

Criminal Procedure Code defects in the form of charge are immaterial unless they lead to failure of justice. I am not convinced that there has been

any failure of justice in the case and the petition therefore must be dismissed.