Section 425 of Indian Penal Code
Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.
Explanation 1 • It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
Explanation 2 •Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.
This section defines the offence of mischief and the next section provides the punishment therefore. Mischief, like most crimes, comprises a mental and a physical, element. To mental element is the intention, express or implied, to cause 'wrongful loss or damage'. The physical element is an act of destruction or injurious change to property. While the mental element is the same in all kinds of mischief, the physical element, the act of destruction or change, may be of any kind of that physical element, the act of destruction or change, may be of any kind of that species of acts, and if the act is of the kind, specified in sections 427 to 440, IPC, the mischief is aggravated and, therefore, more severely punished than under s 426.
There are 14 aggravated offences of mischief, which may be classified, as under by reason of:
It will be clear from this analysis that the offence of mischief has to be considered from the following three different points of view, i.e.,
The causing of wrongful loss by destruction, or change, of property does not, in all cases, become an offence under this section. A criminal liability may not arise if:
This section necessitates three things, viz:
No mischief can, therefore, be committed where the acts complained of amount to an invasion of civil right. The mere fact, that any wrongful loss or damage is caused to property would not constitute mischief unless the intention of the alleged offender is to cause wrongful loss or damage to the person concerned. It is the duty of the criminal court, in such a case, to determine what was the intention of the alleged offender; if it comes to the conclusion that the accused was attempting to assert a bonafide claim of his right, then he cannot be found guilty of the offence of mischief. If an accused honestly believes that he has a right to do what he does even though he does not, in law, have that right, he cannot be said to have had the necessary intention or knowledge that he was likely to cause wrongful loss or damage. His claim should not, however, be a mere pretence or a colourable one; it must be one in assertion of a bonafide right. Mens rea being an essential ingredient of the offence of mischief, the evidence of the same may be inferred from the overt act done by the accused. If a person deals injuriously with property in a bonafide belief that it is his own, he cannot be convicted of mischief.Where each of the contending parties claims ownership of the property in respect of which the offence is alleged to have been committed, it is unsafe to uphold the conviction. Where the accused, acting in good faith and under a bonafide belief that he was entitled to the possession of a certain land, delivered to him by the court in consequence of his purchase at an auction sale, cut away a ripe crop, it was held that he was not guilty of the offence of mischief. Where the accused was in the habit of taking the water from an opening to his fields under a permit out on one occasion he cut open the bound anticipating the grant of the permit, it was held that the accused could not be convicted of mischief because he acted in the bona fide belief that he would get the permit.
The expression 'claim of right' does not refer to actual legal right. It means belief in a legal right. However, so far as the offence of mischief is concerned, a claim of right, believed to exist, even though unreasonably, is a valid defence.The question in cases in which the accused pleads a claim of right is whether there is semblance of such right, and only to this extent the criminal court would be within its right in discussing the point.Where water, draining from the complainant's mill, was polluting the water supply, damaging the crops and rendering the water unfit for drinking, it was held that the accused, in taking steps to prevent the contamination, acted under colour of right.
Where the accused removed some projected poles of a scaffolding over his land and threw down the cement which was on it, it was held that the must be deemed to have acted in bonafide exercise of what he believed to be his right and was not guilty of mischief.Where, in the exercise of bonafide claim of right to bury a deceased person, the members of a congregation broke open the gate of a graveyard which they believed, was wrongfully closed against them by the priest, it was held that they committed no offence.
'Wrongful loss', contemplated in s.425, IPC, need not, necessarily, consist in the infringement of an existing, present and complete right; it may be caused by, an act done now with the intention of defeating and rendering infructuous a right about to come into existence. Any person, who contracts to purchase property and pays a portion of the purchase money, has such an interest in that property although his title may not be complete; the destruction of such property may cause to him wrongful loss within the meaning of s 425.
If a person cuts off the electric supply of another, the intention to cause wrongful loss to the opposite party is clearly there. In Mahadeo Singh v Emperor , over the chabutra of a mosque, there was an image of a Hindu God which was surrounded by a wall. The accused widened the doorway in the wall by demolishing a part of the wall on both sides of the doorway. The wall around the image was the property of the Mohammedans and the Hindus whitewashed the wall from the outside. It was held that by breaking the wall and taking out the bricks, the accused caused wrongful loss to the Mohammadan public and, therefore, an offence under s 425, IPC, was committed.
Where the accused removed the fishing stakes of the complainant from the sea but did not appropriate them, it was held that it amounted to mischief as it caused the wrongful loss of the fish, which the complainant would have caught, and the accused knew that his act was likely to cause that loss.The dominant owner's action in removing the obstruction, willfully placed by the servient owner, amounts to mischief.
In Zipru Tanaji Patil v Emperor ,the accused obtained a decree restraining the complainants from obstructing his right of way to certain land. The complainants obstructed the way in spite of the decree by putting in some dams across the way. The accused removed the dams. It was held that he was not justified in taking the law in his own hands, and as there was wrongful loss, the accused was guilty of mischief.
A man may commit mischief by damaging his own estate if he does so in order to cause, or knowing it to be likely to cause, wrongful loss to somebody else. However, it can hardly be said that a person commits mischief by causing damage to his own estate when it is under the court of wards whose only object is to preserve the estate for the benefit of the owner.The accused removing rocks from his own land for commercial purpose cannot be said to have committed mischief.
The principal ingredients of an offence under s 425, IPC, is that there must be an intention to cause wrongful loss or damage to the public or to any person, meaning thereby that the mischief must be done to the property belonging to another person though act, whereby mischief is done, may have reference to the property belonging to the person committing the mischief.The case of Empress v Rajcoomar Singh , is an obvious illustration of a person, having his right declared by civil court, destroying the property without being guilty of any mischief. No offence of mischief is committed when a person pulls down his own wall and then rebuilds, or puts his own chhan on fire and tried to falsely implicate others.
Intention is not necessary in every case. The terms of s 425, IPC, would be satisfied when there is a distinction on the point of the accused's knowledge, in which case the question of intention is material only as regards the sentence.When a person drives a heavy vehicle, like a lorry, with hopelessly poor lights, it must be imputed that he had the knowledge that he was likely to cause wrongful loss or damage to any person though there could be no intention to cause wrongful loss or damage to any person.
Where the accused, after driving out a cow from his master's field, after it had reached the boundary, threw two stones at it, one of which fractured its leg, it was held that the accused was guilty of mischief.It has, however, to be proved that the accused had caused destruction of, or change in, property as contemplated by the section. Unless such result of the accused's act is established, his intention or knowledge need not be considered.
The word 'property', in s 425, IPC, means some tangible property capable of being forcibly destroyed; it does not include an incorporeal or intangible property such as an easement.Further, the section has no application to an ownerless property. Where no one has any property or right in an animal, the killing of that animal does not come within the purview of s 425, IPC . The killing of a rhinoceros would not amount to mischief.A bull left at large after branding it for public utility would be res nullius and killing of it would not amount to mischief.However, a young calf, branded at the shradha of the father of the complainant and fed and kept by him, would not cease to be his property and killing of it would be mischief.The tearing of a receipt of a registered article after taking delivery from a postmaster would be mischief.
Where the accused dug up some graves and removed the stones placed over them in order to extend his cultivation, it was held that the graves might be treated as property, and that the accused was guilty of mischief. The value of the property involved is immaterial. Any value, however trifling it may be, is quite sufficient for an offence of mischief.
In view of explanation 1 to this section, it is immaterial whether the land in question belonged to the complainant, or it was in possession of someone else, when the accused committed mischief by demolishing construction on it.
According to explanation 2 to this section, mischief may be committed by an act affecting property belonging to the person who committed the act, or to that person and others jointly. In Baboo Lal v Emperor , the accused demolished the parda (i.e., common) wall, which, according to him, belonged to him exclusively and was constructed by him at his own cost. It was found that the disputed wall belonged to the complainant and accused both, and as the accused demolished it with intent to cause wrongful loss or damage to the complainant, he was guilty of mischief. It is worth mentioning here that the principal ingredient of the offence of mischief is that there must be an intention to cause wrongful loss or damage to the public or to any person, meaning thereby that mischief must be done to the property belonging to another person though the act, whereby mischief is done, may have reference to the property belonging to the person committing the mischief.If a person blocks up a channel of water at a spot within his own land, preventing the complainant from irrigating his own land, he would be guilty of the offence of mischief.