EMPEROR Vs. ZIPRU TANAJI PATIL

JUDGEMENT

(1.) The applicant in these cases has been convicted of the offence of mischief under Section 426, Indian Penal Code, and sentenced in one case to a fine of Rs. 10 and in the other case to one of Rs. 25. He was prosecuted in respect of his having dismantled certain stone dams that had been constructed by the two complainants to protect their fields from the adjacent river water, and evidence was given that thereby certain loss has been caused to these two complainants. The defence of the applicant was that he had a right of way for his carts which was obstructed by these dams, and he had obtained an injunction from the Mamlatdar's Court at Chalisgaon restraining the complainants from so obstructing him. As the complainants did not remove the dams which were obstructing his way, he had the dams removed. The Magistrate held that that was not a sufficient defence, that he had his legal remedy, in case the injunction was not complied with, of taking action under Sub-section (4), Section 21, of the Mamlatdars Courts Act; and that he was not justified in taking the law in his own hands and removing the dams, thereby causing damage to the complainants. The District Magistrate, East Khandesh, upon appeal, agreed with this view and rejected the appeals.

(2.) Before us it was contended that in view of the injunction that had been granted by the Mamlatdar, there was no offence of mischief committed. Under the definition of "mischief" it has to be shown that the accused committed the act with intent to cause, or knowing that he was likely to cause wrongful loss or damage to any person, and "wrongful loss" is defined in Section 23 as "the loss by unlawful means of property to which the person losing it is legally entitled." The question really, therefore, resolves itself into whether this particular loss that the Magistrate found had been caused to the complainants was caused by unlawful means.

(3.) Accordingly, the question arises whether the applicant was justified in abating the nuisance, or the interference with his alleged right of way, by personal action instead of taking such steps for redress as either the Mamlatdars Courts Act or a suit might give him. It was contended that he was justified in himself abating the nuisance, and in support of that proposition reliance was placed upon in Re Dharmalinga Mudaly. (1914) I.L.R. 39 Mad. 57 In that case the accused had pulled down a wall that was obstructing a public way, and did so in the bona fide exercise of their right of way. It is said in the judgment (p. 58):- If the site was a public path and it the complainant obstructed it wrongfully by a wall, the loss caused to him by the members of the public who pull it down in order to exercise their right of way through the site cannot be considered wrongful loss.