IMPORTANT POINT
Disconnection of water supply by association for non-payment of dues does not constitute mischief under IPC unless it is habitual or unjustified.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings in C.C. No. 687/2023 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam. The petitioners herein are the accused in the above case.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor, in detail. Also heard the learned counsel appearing for the defacto complainant. Perused the relevant materials available.

3. In this matter, the prosecution alleges commission of offence punishable under Section 430 read with 34 of the Indian Penal Code, by the accused. Initially as on 24.09.2023, the FIR was registered on the basis of the FIS lodged by the defacto complainant, who is residing on rent in one of the flats in RDS Retreat Apartments, Ernakulam. The prosecution allegation is that, the accused herein who are the President, Secretary and Treasurer of the RDS Retreat Apartments Owners Welfare Association, disconnected the water supply to the rental flat, where the defacto complainant has been residing for the last 15 years and thereby her basic amenities for drinking water and to do cooking etc. were denied.

4. While seeking quashment of the proceedings, the learned counsel for the petitioners argued that, the petitioners/accused, being the office bearers of the RDS Retreat Apartments Owners Welfare Association, vested with administration of the apartment complex comprising of several dwelling units, has been controlling the supply of water to various flats, supplied by the Kerala Water Authority and for the supply of water, each member of the association will have to pay the charges for the same. It is submitted by the learned counsel for the petitioners that, water connection to the defacto complainant's rental residence was stopped, when she left huge arrears towards water charges and failed to pay Rs. 51,334/- towards the said head, after issuing Annexure.R3(e) notice. Thereafter, the defacto complainant paid Rs. 51,334/- and accordingly water supply was reconnected. Therefore, in the facts of the given case, offence punishable under Section 430 read with 34 of the Indian Penal Code would not attract. It is specifically pointed out by the learned counsel for the petitioners that, as of now also Rs. 50,000/- is due from the defacto complainant and the petitioners are not in a position to supply water without remitting the fee prescribed for the same, as they would not bear the costs by themselves.

5. The learned counsel for the petitioners would further submit that, in order to attract offence punishable under Section 430 of IPC, mischief must be committed by a person, by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals. In the instant case, water supply to the flat of the defacto complainant was disconnected, after giving notice demanding payment of huge arrears of water charge and thereafter reconnected the water supply on payment of arrears. Therefore, the said overt acts would not constitute mischief defined under Section 425 of IPC, so as to attract the offence punishable under Section 430 of IPC.

6. It is submitted by the learned counsel for the petitioners that, even going by the mahazar prepared on 25.09.2023, water supply was not found only in the tap inside the bathroom of the flat and other places water supply was found. It is submitted that, water supply to the bathrooms of the apartment would be provided only during morning and evening as agreed between the flat owners and the association. Therefore, in the mahazar prepared on 11.30 hours on 25.09.2023, the narration that there was no water supply at the bathroom of the flat of the defacto complainant, is not a reason to hold that there was failure to give water after payment of Rs. 51,334/-. Therefore, the quashment sought for is liable to