Punjab-Haryana High Court
Parvinder Kumar vs State Of Haryana And Another on 7 December, 2023
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2023:PHHC:157615
2023:PHHC:157615
CRM-M-58310-2022 -1-
210 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-58310-2022
Date of decision : 07.12.2023
PARVINDER KUMAR
... Petitioners
Versus
STATE OF HARYANA & ANOTHER
...Respondents
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Pratham Sethi, Advocate
for the petitioner.
Mr. Kanwar Sanjiv Kumar, Asstt. A.G., Haryana
for respondent No.1.
None for respondent No.2.
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 482 Cr.P.C. is for quashing of FIR No.0165 dated 13.05.2021 (Annexure P-1) registered under Sections 379, 430 of the IPC, 1860 (Sections 3, 4 of Prevention of Damage to Public Property Act, 1984 added later on) at Police Station Dabwali Sadar, District Sirsa and all subsequent proceedings arising therefrom.
2. The brief facts of the case are that FIR No.165 dated 13.05.2021 under Sections 379/430 IPC (Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1985 added later on) was registered against the petitioner on the complaint of respondent No.2. The allegations levelled in the complaint by respondent No.2 in brief are that the Sarpanch Gram Panchayat Matdadu and other members had given a letter in writing that Parvinder Kumar son of Sh. Tara Chand, resident of Matdadu now at Dabwali had at two places connected 2 ½ 1 of 10 ::: Downloaded on - 09-12-2023 22:29:04 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -2- inches plastic pipes, one from the tank and other from the RCC pipe line and had also installed a motor on the second pipe, in the pipe line which is laid from the canal to the water works of the village. Due to this problem of drinking water had arisen in the village. So, a request for legal action was made against Parvinder Kumar son of Sh. Tara Chand for theft of water, for making a hole in the pipeline of village and for causing damages to public property.
On the basis of the complaint, the instant FIR came to be registered against the petitioner.
3. During the course of investigation, the place of occurrence was inspected and a rough site plan was prepared and it was found that at two places 2 ½ inches plastic pipes were connected one from the water tank and another/second from the RCC pipeline and on the second pipe an electric motor make Crompton and an electric wire was installed which were taken into possession. The statement of witnesses were recorded and Section 3 and 4 of the Prevention of Damage to Public Property Act, 1984 were added in the case.
4. The petitioner was granted bail and on completion of the investigation, the report under Section 173(2) Cr.P.C. submitted against the petitioner on 13.08.2021.
5. The learned counsel for the petitioner contends that the allegations against the petitioner are baseless. However, taking the allegations to be correct, no offence as alleged was made out. The liability, if any fell under the Haryana Canal and Drainage Act, 1974. Further, if it was to be believed that the petitioner had unauthorisedly used canal water after attaching pipes as alleged, the State could have 2 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -3- sought enhanced water charges from the petitioner on account of the unauthorised use of the canal water. At any rate, the present FIR was liable to be quashed. Reliance is placed on the judgments of this Court in Jitendra Pal & others Versus State of Haryana & another, CRM-M- 56305-2018, decided on 24.11.2023 and Gurmeet Singh and others Versus State of Punjab and another, CRM-M-28642-2010, decided on 02.09.2011.
6. On the other hand, the learned State counsel while referring to the reply dated 29.03.2023, contends that the offence was established beyond reasonable doubt. It had been conclusively found that the petitioner had at two places connected pipes from the tank and from the RCC pipeline and had also installed a motor on the second pipe. This had caused problem of drinking water and therefore, the offence was established beyond reasonable doubt.
7. I have heard the learned counsel for the parties.
8. Before proceeding further in the matter, it would be apposite to refer to the relevant provisions of the law.
Section 379 IPC reads as under:-
379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 430 IPC reads as under:-
430. Mischief by injury to works of irrigation or by wrongfully diverting water.- Whoever commits mischief 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 3 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -4- beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
Section 3 of the The Prevention of Damage to Public Property Act, 1984 reads as under:-
3. Mischief causing damage to public property.--
(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being--
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-
communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
Section 4 of the The Prevention of Damage to Public Property Act, 1984 reads as under:-
4. Mischief causing damage to public property by fire or explosive substance.
4 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -5- Whoever commits an offence under sub-section (1) or sub-section (2) of section 3 by fire or explosive substance shall be punished with rigrous imprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine:
Provided that the court may, for special reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than one year.
Section 28 of the Haryana Canal and Drainage Act, 1974, reads as under:-
28. Liability when person using unauthorisedly cannot be identified. -If water supplied through a canal is used in an unauthorised manner, and if the person by whose Act or neglect such use has occured cannot be identified, the person who has derived or may derive benefit therefrom, shall be liable to the charges prescribed for such use.
Section 30 of the Haryana Canal and Drainage Act, 1974 reads under:-
30. Charges recoverable in addition to penalties.-
(1) All charges for the unauthorised use or waste of water may be recovered in addition to any penalties incurred on account of such use or waste. (2) All questions, under sections 28 and 29 shall be decided by the Divisional Canal Officer. (3) An appeal shall lie to the Superintending Canal Officer against the decision of the Divisional Canal Officer within a period of thirty days from the date of such decision.
(4) The Chief Canal Officer may, on an application made in this behalf by an aggrieved person, within a period of thirty days from the date of the orders, revise an order passed in appeal under sub-section (3).
5 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -6- (5) All questions, appeals and applications pending for disposal on the commencement of the Haryana Canal and Drainage (Amendment) Act, 1987, before the Canal Executive Officers, Collectors and Commissioners, as the case may be, shall also be decided by the Divisional Canal Officers, Superintending Canal Officers and Chief Canal Officers, respectively.
Section 58 of the Haryana Canal and Drainage Act, 1974, reads as under:-
"58. Offences under the Act.- Whoever, without proper authority, does any of the following acts:-
(a) damages, alters, enlarges or constructs any canal or drainage work;
(b) interferes with, increases or diminishes the supply of water in or the flow of water from, through, over or under any canal or drainage work;
(c) interferes with or alters the flow of water in any river or stream, so as to endanger, damage or renders less useful any canal or drainage work;
(d) being responsible for the maintenance of a watercourse, or using a watercourse neglects to take proper precautions for the prevention of waste of a water thereof, or interferes with the authorized distribution of the water therefrom, or uses such water in any unauthorized manner;
(e) causes any vessel to enter or navigate any Canal contrary to the rules for the time being prescribed by the State Government for entering or navigating such canal;
(f) while navigating on any canal neglects to take proper precautions for the safety of the canal and of vessel thereon;
(g) corrupts or fouls the water of any canal;
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(h) destroys or moves any level mark or watergauge fixed by the authority of a public servant;
(i) Passes or causes animals or vehicles to pass on or across any of the works, banks or channels of a canal or drainage work contrary to rules made under this Act, after he has been desired to desist therefrom;
(j) disobeys any order passed under section 55. [(k) discharges any sewage or trade effluent into a Canal] [Shall, in respect of offences under clauses (a), (b)
(c), (g) and (k) above, be liable on conviction to a fine not exceeding five thousand rupees or imprisonment not exceeding six months or both and in case of continuing offence/contravention, with an additional fine which may extend to five hundred rupees for every subsequent day. In respect of other offences, the offender shall be liable on conviction to a fine not exceeding one thousand rupees or imprisonment not exceeding one month or to both]."
9. The relevant judgments relied upon by the learned counsel for the petitioner are as under:-
In Jitendra Pal & others Versus State of Haryana & another, CRM-M-56305-2018, decided on 24.11.2023, this Court held as under:-
"8. A perusal of Section 58 (supra) would show that for damaging altering, enlarging or constructing any canal or interfering with the flow of the water etc. the penalty has been provided under the Act itself. In the instant case, the allegations are firstly of dismantling of the canal constructed by the Department and thereafter using the bricks in the construction of another canal and/or in the construction of a sheller. As regards the dismantling of the canal is concerned, the offence, if 7 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -8- any would be under Section 58 of the Act which also provides of penalties.
As regards the usage of the bricks after committing theft, it may be pointed that Section 379 IPC cannot be made out in the instant case. There is no statement of the manufacturer of the bricks recorded under Section 161 Cr.P.C. that those bricks had been sold to the Department and not to the petitioners. In the absence of any such statement by no stretch of imagination can it be held that the petitioners had committed the offence of theft of bricks.
As has already been discussed above, no offence under the Prevention of Damage to Public Property Act, 1984 is made out as the offences, if any would invite proceedings under Section 58 of the Act at best.
9. In view of the aforementioned discussion, the continuance of the proceedings arising out of FIR No.206 dated 20.04.2017 (Annexure P-1) registered under Section 379 IPC and 3 of PDPACT, 1984 at Police Station Pehowa, District Kurukshetra are nothing but an abuse of the process of the Court and therefore, the FIR No.206 dated 20.04.2017 (Annexure P-1) registered under Section 379 IPC and 3 of PDPACT, 1984 at Police Station Pehowa, District Kurukshetra and all consequential proceedings arising therefrom stands quashed."
(emphasis supplied) In Gurmeet Singh and others Versus State of Punjab and another, CRM-M-28642-2010, decided on 02.09.2011, this Court held as under:-
"The FIR in question has been registered against the petitioners on the allegations that they had unauthorizedly irrigated their land with the help of rubber pipes from the bank of the canal.
8 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -9- The case of the petitioners is fully covered by the decision of this Court in Parkash Singh's case (supra) . Vide the said judgment, it was held that unauthorized use of canal water cannot be said to be an offence. The State could have sought enhanced water charges from the petitioners on account of unauthorized use of canal water. However, the continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
Accordingly, this petition is allowed. FIR No.41 dated 2.4.2010 (Annexure P1) under Sections 379/430 IPC registered at Police Station Lambi District Muktsar and all subsequent proceedings arising thereto are quashed.
(emphasis supplied)
10. In the instant case, taking the allegations to be correct of the petitioner affixing two pipes one from the tank and the other from the RCC pipeline and also a water pump, no offence whatsoever is made out. The Haryana Canal and Drainage Act, 1974 is a special Act governing the field of canals and drainage. Section 28 of the Act refers to the charges to be paid for the unauthorised use of canal water. Section 30 (supra) refers to charges recoverable in addition to penalties. Section 58 of the Act would show that if an accused damages, alters, enlarges or constructs any canal or drainage work or interferes with by increasing or diminishing the supply of water etc., then, he can be penalized under the provisions of the Act itself. In the instant case, it is apparent that if the allegations were to be true that the petitioner had damaged, altered and had diminished the supply of water to the detriment of the village people then these acts were clearly punishable under Section 58 (supra) for the unauthorized enhanced use of water additional charges could have been 9 of 10 ::: Downloaded on - 09-12-2023 22:29:05 ::: Neutral Citation No:=2023:PHHC:157615 2023:PHHC:157615 CRM-M-58310-2022 -10- levied as provided under Sections 28 & 30 (supra). Therefore, apparently, no offence under Sections 379 IPC and 430 IPC is made out. Similarly, no offence under Sections 3 & 4 of the Prevention of Damage to Public Property Act, 1984 is also made out, the Haryana Canal and Drainage Act, 1974 is a special act governing the field as has already been discussed hereinabove.
12. In view of the aforementioned discussion, the continuance of the proceedings arising out of FIR No.0165 dated 13.05.2021 (Annexure P-1) registered under Sections 379, 430 of the IPC, 1860 (Sections 3, 4 of Prevention of Damage to Public Property Act, 1984 added later on) at Police Station Dabwali Sadar, District Sirsa are nothing but an abuse of the process of the law and therefore, the FIR No.0165 dated 13.05.2021 (Annexure P-1) registered under Sections 379, 430 of the IPC, 1860 (Sections 3, 4 of Prevention of Damage to Public Property Act, 1984 added later on) at Police Station Dabwali Sadar, District Sirsa and all consequential proceedings arising therefrom stand quashed.
(JASJIT SINGH BEDI) JUDGE 07.12.2023 JITESH Whether speaking/reasoned:- Yes/No Whether reportable:- Yes/No Neutral Citation No:=2023:PHHC:157615 10 of 10 ::: Downloaded on - 09-12-2023 22:29:05 :::