1. The petitioner is the first accused in S.T. No:155/2011 of Judicial Fist Class Magistrate Court-I, Kottayam. The offence alleged against him and the co-accused is under section 277 r/w 34 IPC.

2. The gist of the prosecution case is that on 14.12.2010 at about midnight, the first accused loaded toilet waste in lorry No:KL-4-D-7796, he and the second accused took the same to a place called ‘Thonikadavu’, situated in Manganam – Kalathiparambu road and dumped the latrine waste/human excreta into the ‘thodu’ underneath the bridge and polluted the water and thus the petitioner and other accused committed offence under Section 277 r/w 34 IPC.

3. A crime was registered based on the statement given by the 2nd respondent. After conducting investigation charge sheet was laid against the petitioner and other accused for the offence as mentioned above.

4. The learned counsel for the petitioner vehemently argues that the materials collected and mentioned in the final report, do not make out a case under section 277 of IPC. To attract section 277 it has to be proved that the accused corrupted or fouled the water of any public spring or reservoir so as to render it less fit for the purpose for which it is originally used. The argument that has been advanced by the learned counsel is that the ‘thodu’ underneath the bridge has not been described as public spring or reservoir. The line of argument is that, as it is described as a ‘thodu’ it cannot be a reservoir, but the water is to flow from one direction to another.

5. The other argument is that there is no specific case as to the purpose for which originally the water of that ‘thodu’ is used. It requires no further elucidation as to the magnitude of the fouling effect when the latrine waste is dumped into the ‘thodu’. Even if it is assumed that the water of that ‘thodu’ was not actually used for drinking purpose it can be reasonably inferred that the said water would become unfit for taking bath or for washing or for such similar purpose, even if it was not used for drinking purpose.

6. When there is specific allegation that the accused carried such toilet waste to the bridge and from there it was dumped into the ‘thodu’, then it cannot be contended that the act of the accused was not intended to corrupt or foul the water. The contention that Section 277 would apply only to still or stagnant water and not to flowing water also cannot be accepted at this stage, in a petition filed under section 482 of Cr.P.C. In the ‘thodu’ itself there would be spring; whether it was a flowing one or not is a matter to be considered at the trial, the learned Prosecutor submits.

7. The other question that has been canvassed by the learned counsel for the petitioner is that there is no material to show that the ‘thodu’ is a public ‘thodu’. The case of the prosecution is that the ‘thodu’ lies underneath the bridge, which is a public bridge, and as it is described as ‘thodu’ it must certainly be a public ‘thodu’ especially because it is beneath a bridge described as ‘Thonikadavu Bridge.’ The description of the bridge and the ‘thodu’ is sufficient to hold that it is a public ‘thodu’. The fact that by dumping such waste material the water must have been rendered less fit for the purpose for which it was used cannot be disputed at all.

8. It was also argued at length by Sri. Revikrishnan, learned counsel appearing for the petitioner, that in view of the provision contained in Water (Prevention and Control of Pollution) Act, 1974, (for short – Water Act), the provisions contained in Section 277 IPC must be deemed to have been repealed. According to the learned counsel the offence relating to pollution of water is comprehensively dealt with by the Water Act.

9. Section 24 of that Act deals with the prohibition on use of stream or well for disposal of polluting matter, etc. Section 43 is the penal provision dealing with the same. Under section 49 of the Act, cognizance of offences under that Act, exce