The omission to pump water from the reservoir into the flats did not constitute 'mischief' as defined in the Indian Penal Code, but was considered a breach of contract.

ORDER

Sharpe, J. - The petitioners have been convicted u/s 430, and Section 430 read with Section 114 of the Indian Penal Code, respectively, and sentenced to pay a fine of Rs. 100/-each, in default two months' rigorous imprisonment. The facts, which have not been fully set out in the judgment of the learned Magistrate, appear to be that the landlord had agreed with the tenants of Ms flats to pump water from a reservoir, in which filtered water supplied by the corporation was collected, and for this purpose a separate charge was imposed and paid by the tenants. One of the tenants alleged that on certain dates in the month of June 1946, the water was not pumped as per agreement, and on his making enquiries the pumpman, petitioner No. 1, informed him that the landlord, petitioner No. 2, has stopped the water supply, in other words had cancelled the order for pumping water into the flats.

2. On these facts the learned Magistrate held that the offence of mischief as defined u/s 425 and the offence contemplated by Section 430 of the Indian Penal Code had been committed.

3. It seems difficult to hold that the facts of the present case will amount to the offence of mischief as defined in Section 425 of the Indian Penal Code. It may be that the landlord would be liable for damages on account of a breach of the agreement to pump the water from the central reservoir, for which, according to the evidence, a separate charge is levied but I fail to see how this omission can be said to constitute "any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously." It is not contended that there was any interference with the taking of water from the central reservoir, but the only allegation is that on certain days there was omission to pump water from the reservoir into the flats. As pointed out by Mr. Bhattacharjya, who appeared for the petitioners, this was not a case of interference with the supply of water. The change contemplated u/s 425 of the Indian Penal Code appears to me to be some physical change in the property and omission to pump the water does not appear to me to constitute such a change as would make that omission "mischief". It is just possible that if the supply of water to the flats was a part of the tenancy and if the landlord interfered in any way with the supply, which was an integral part of the tenancy, the matter might be different. But in the present case those considerations do not arise. In my opinion, the omission mentioned will not amount to more than a breach of contract, for which the criminal Court will not be the appropriate authority for decision.

4. The result is that this rule is made absolute. Conviction of the petitioners is set aside, and the fines, if paid, will be refunded.