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.
4. The judgment contains no other statement of the reasons, so far as it relates to 'mischief' in that case, but I gather the decision is based upon what used to be the old law of England. Thus in Blackstone's Commentaries, on the Laws of England, Book 3, Chap. I, p. 5, it was stated as follows :-
Whatsoever unlawfully annoys or doth damage to another is a nuisance ; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot (or breach of the peace) in the doing it,...If a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way may out it down, and destroy it.
5. It is, however, said in Peacock's 'Law Relating to Easements', (1st Edn.), p. 505, that this form of remedy has not been in favour with the English Courts in modern times. Thus, in Hyde v. Graham (1862) 1. H. &. C. 593 Pollock C.B. said (p. 598) :-
No doubt, in Blackstone's Commentaries, some instances are given where a person is allowed to obtain redress by his own act as well as by operation of law, but the occasions are very few ; and they might constantly lead to breaches of the peace, for if a man has a right to remove a gate placed across the land of another, he would have a right to do it even though the owner was there and forbade him. The law of England appears to me, both in spirit and on principle, to prevent persons from redressing their grievances by their own act.
6. Again, just below that particular quotation, the author says that in India originally this form of remedy was held to be one that might be adopted by the injured party, and two Calcutta cases are cited in support of that view; but he points out that (p. 505):-
By Section 36 of the Indian Easements Act it has been expressly repudiated, for the reason as appears in the statement of objects and reasons, that it is opposed to the policy of the modern systems of law, and is likely to encourage riot and trespass.
7. Section 36 of the Indian Easements Act says:-
Notwithstanding the provisions of Section 24 the dominant owner cannot himself abate a wrongful obstruction of an casement.
8. That is a clear statement of the law, and it seems to me that it must be given effect to, contrary to any view that may be taken upon English authorities. In this case the right of way is an easement, the accused was the dominant owner, and that section plainly says that he had no right to abate the nuisance himself. This is a conclusion that relates to private easements, and I do not in any way mean to say that the same necessarily applies to cases of obstruction of a public way. Different considerations might arise in that case ; but it seems to me clear that in the present case the view taken by the two lower Courts is correct.
9. In Queen-Empress v. Abdul Aziz (1895) Unrep. Cr. C. 745, it was held that there is no 'mischief', if a person innocently removes a barricade placed by a Municipality on a piece of land in front of his house, which impairs his ingress and egress to or from the said house. The only reason given is that 'the conviction is bad as the intent described in Section 425 of the Indian Penal Code is not found by the Magistrate and cannot reasonably be inferred from the evidence by this Court. The accused appears to have thought he was abating a nuisance; and the case of The King v. Russell (1827) 6 B. & C. 566 somewhat supports that view.' There the Court followed the English law which, as I have pointed out, cannot properly be followed in a case, at any rate, like the one before us.
10. We were referred to Emperor v. Balkrishna Narhar : AIR1924Bom486 . That case, however, related to a party-wall, in regard to which the complainant and the accused were tenants-in-common. In that case there was some authority for holding that the nuisance could be abated personally by one of the tenants-in-common. That is a case which does not fall under the Indian Easements Act, and, therefore, it is not on all fours with the present case.
11. For these reasons, I am of opinion that the applications for our interference with the orders of the lower Courts fail and should be dismissed.
12. I agree.