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1955 DIGILAW 358 (ALL)

Sarnam Singh v. State of U. P.

1955-11-18

D.N.ROY

body1955
JUDGMENT D.N. Roy, J. - This is an application in revision by Sarnam Singh and nine others, who have been convicted at a summary trial by the Canal Magistrate, exercising powers under the Second Class, for an offence u/s 70 of the Northern India Canal and Drainage Act, No. VIII of 1873, and each of whom has been sentenced to a fine of Rs. 40/-. Their appeal was dismissed by the learned Assistant Sessions Judge. A revision was filed by them before the Sessions Judge, but that too had been rejected. They have, therefore, come up in revision to this Court. 2. Two points have been urged on behalf of the applicants. Firstly, that the Magistrate had no power to try the case summarily and the trial was, therefore, illegal. Secondly, that upon the facts found a conviction u/s 70 of the Act could not have been based. 3. It is conceded at the Bar that the accused was tried summarily by the Canal Magistrate, who was invested only with powers of a Magistrate of the Second Class. The provision for summary trials is contained under Chapter XXII of the Code of Criminal Procedure. Section 260 of the Code lays down the conditions where the District Magistrate, or a Magistrate of the First Class especially empowered in that behalf by the State Government, or any Bench of Magistrates invested with the powers of a Magistrate of the First Class and especially empowered in that behalf by the State Government, may try in a summary way all or any of the offences enumerated in that section. Section 261 of the Code empowers the State Government to confer on any Bench of Magistrates invested with the powers of a Magistrate of the Second or Third Class power, to try summarily all or any of the offences mentioned in that section. There is no other section in the Code which empowers a Magistrate of the Second Class to try offences summarily or which even empowers the State Government to confer on a Magistrate of the Second Class powers to try summarily any offence. There is no other section in the Code which empowers a Magistrate of the Second Class to try offences summarily or which even empowers the State Government to confer on a Magistrate of the Second Class powers to try summarily any offence. In the present case, therefore, the Canal Magistrate, exercising the powers of the Second Class, cannot be termed as a "Bench of Magistrates invested with the powers of a Magistrate of the Second Class," on whom the State Government could confer the power to try summarily offences enumerated in Section 261 of the Code of Criminal Procedure Moreover, an offence u/s 70 of the Northern India Canal and Drainage Act is not an offence enumerated u/s 261 of the Code. Consequently the trial under the summary provisions by this Magistrate was illegal. 4. Apart from that aspect of the matter, the offence u/s 70 of the Northern India Canal and Drainage Act was not proved. Section 3, Sub-section (1) of the Act defines a "canal". It is admitted that Sub-sections (a), (b) and (d) do not apply to the water channel in this case. Reliance was, however, placed on Sub-section (c), which provides that a canal includes all watercourses as defined in the second clause of this section. Clause (2) of the section is as follows: Water-course means any channel which is supplied with water from canal, but which is not maintained at the cost of the State Government and all subsidiary works belonging to any such channel. 5. Section 70 makes it an offence to damage, alter, enlarge, or obstruct any canal or drainage work. It is said that demolition of the water channel is clearly punishable u/s 70 as it was a private water work. A learned single Judge of this Court in the case of Ramji Lal v. Emperor 1941 A.W.R. (H.C.) 395 was of the opinion that the Act would apply to a private channel constructed in accordance with the provisions of Section 21 of the Act. Section 20 of the Act gives a Divisional Canal Officer authority to direct the persons responsible for the maintenance of an existing water-course to permit supply of water to be conveyed through such water-course to the person who needs the water. Section 21 of the Act gives authority to the Divisional Canal Officer to allow a new water-course to be constructed on land belonging to others. Section 21 of the Act gives authority to the Divisional Canal Officer to allow a new water-course to be constructed on land belonging to others. Sections 20 and 21 cannot really help in determining whether a particular channel is or is not a water-course. If there is a previous order by a Canal Officer, either u/s 20 or Section 21, that would make it clear that the channel in question is a water-course as defined in the Act. But in the absence of any order u/s 20, or Section 21, whether a particular channel is or is not a water-course is a question of fact and the decision of that question would depend upon the decision of the question whether the water channel is recognised as such by the people of the locality. I should not be understood to mean that it should have existed for twenty years or more to enable others to acquire rights of easement, but it should have existed for a sufficiently long period, or it should have been so generally used-by the people of the locality as of right that it could be said that the channel was a well-recognised "water-course for the purposes of irrigation." 6. From the facts proved it appears that the water-course which has been demolished is a water-course which lay in the middle of plot No. 2745, the northern part of which belonged to the accused and the southern part of which belonged to the complainant. There is another water channel running along the south of plot No. 2745 which on the south-west corner of plot No. 2745 takes a north-western course flowing along the western boundary of plot No. 2745 and thereafter flowing in between plots Nos. 2542 and 2543, and thereafter flowing onwards between other plots. That channel still subsists. The result therefore is that there is no obstruction in the right of irrigating the southern part of plot No. 2745 which is held by the complainant or the other plots inclusive of plots Nos. 2542 and 2543, and thereafter flowing onwards between other plots. That channel still subsists. The result therefore is that there is no obstruction in the right of irrigating the southern part of plot No. 2745 which is held by the complainant or the other plots inclusive of plots Nos. 2542 and 2543, The existence of the channel between the northern half of plot No. 2745 and the southern half of that plot had not been noted in the settlement map which was prepared in the year 1348 F. The view of the courts below was that the nonexistence of that portion of the channel, in the middle of plot No. 2745 in the settlement map would not be proof of the fact that the chancel did not exist at that date on that portion of the land. Assuming that that part of the channel existed in the year 1348 F, even then it was a channel which had been prepared by the co-sharers of plot No. 2745 for their own private use and it cannot be said to be a channel which existed for a sufficiently long period or had been so generally used by the people of the locality as of right that it could be said that the channel was a well recognised "water-course for the purposes of irrigation." In this view of the matter a conviction u/s 70 of the Act cannot be upheld. In this connection reference may also be made to a decision of this Court in Kanhaiya Singh v. Rex through Pitam Singh 1949 A.W.R. (H.C.) 551. 7. The application in revision is allowed, the conviction and sentence of the applicants u/s 70 of the Northern India Canal and Drainage Act are set aside. The fines, if paid, shall be refunded to them.