JAMBULINGAM PILLAI Vs. PONNUSWAMI PILLAI

JUDGEMENT

(1.) This is a petition to revise the conviction of the petitioner by the Chief Presidency Magistrate, Madras, of an. offence punishable under Section 426, Indian Penal Code.

(2.) The facts of the case are very simple. The complainant in the case and the. petitioner who was the accused occupy neighbouring houses which were apparently built recently one after the other, the accused's house having been completed earlier than the complainant s. The complainant appears to have arranged to plaster the parapet wall on the terrace of his house by erecting a scaffolding supported by poles inserted in his terrace but projecting several feet over the accused's land and put planks on the poles which projected over the accused's land to the extent of about 3 or 4 feet. The accused appears to have objected to this projection of the scaffolding over his land and asked that it should be removed, and when his request was disregarded, he is said to have cut the ropes of the scaffolding and thrown down the cement which was upon it. The accused's defence was that he merely untied a portion of the scaffolding which he was entitled to do. Even assuming that the prosecution case is true that the ropes were cut and not merely untied and that cement was thrown out by the accused, the question remains whether what the accused did amounts to the offence of mischief. It is clear from the definition of the offence of. mischief in Section 425, Indian Penal Code, that an essential ingredient of the offence is the intention to cause, or knowledge that the person is likely to cause, wrongful loss or damage. In other words, what is compendiously referred to as mens rea is one of the essential ingredients of this offence, and if the accused honestly believed in good faith that he had the right to do what) he did, even if he did not in law have that right, he cannot be j said to have had the necessary intention or knowledge that he was likely to cause wrongful, loss or damage. In fact it has been laid down in a number of cases that in the absence of any intention or knowledge of this kind a conviction for mischief cannot be had. In this case there was undoubtedly a projection of the poles and the planks over the land of the accused, and there can be no doubt that this projection was an invasion of the rights of the accused. He appears to have filed, while the criminal case was pending, a civil suit with reference to this matter, and it would appear that the Magistrate adjourned this case for a fairly long period in order to wait if possible for the civil suit to be determined. Finally he decided not to wait and pronounced judgment convicting the accused. Whether a projection of this kind amounts to a trespass which the owner of the property trespassed upon can remove in an ordinary or normal manner (and if it is a trespass the petitioner can take the law into his own hands without being found guilty of any criminal offence or even of a civil wrong) or whether it is a nuisance which he would have no right to abate himself by wrongfully dealing with another man's property is a question which cannot be easily determined. The learned advocate for the petitioner has referred to a passage at page 215 of Salmond on the Law of Torts, 8 edition, to the effect that a person may cut and remove telegraph or other electric wire stretched through the air above his land, at whatever height it may be, and whether he can show that he suffers any harm or inconvenience from it or not. This passage is based on the decision in Wandsworth Board of Works v. United Telephone Co. (1884) 13 Q.B.D. 904 at 927. In dealing with the same class of cases of trespass above the surface on the next page the learned author observes that the state of the authorities is such that it is impossible to say with any confidence what the law on this point really is; and in the foot note to that page he refers to a number of cases in some of which projections were held to amount to trespass, while in some others projections were held to amount only to nuisance and not trespass. It is clear therefore that in a case of this kind where the law itself is so uncertain the petitioner must have honestly believed that the projection was a trespass and that therefore he had a right to remove it by reasonable means. It is not alleged that the means were not reasonable, and there can be no doubt in these circumstances that he must have acted bona fide in the exercise of what he believed to be his rights and there was certainly no justification for convicting him of a criminal offence in respect of this act. It is unfortunate that the learned Magistrate should not have perceived this aspect of the case and should have exposed the petitioner to a comparatively prolonged trial in a case of this kind, subjecting him to a good deal of worry and expense. In my opinion this is a case which ought to have been dismissed in limine under Section 203, Criminal Procedure Code; indeed, compensation might have been awarded rightly in this case to the accused.

(3.) The conviction and the sentence of the petitioner are therefore set aside and the petitioner is honourably acquitted on the ground that no offence h's been made out at all even according to the case for the prosecution. The fine if paid must be refunded to the petitioner.