John Beaumont, Kt., C.J.
1. This is an application in revision in which the applicant complains of his conviction by the Second Class Magistrate of Yeola of mischief under Section 427 of the Indian Penal Code. The conviction was upheld by the District Magistrate of Nasik.
2. The material facts are that the accused owns a building, in which he installed an oil engine, and the complainant is the owner or occupier of a neighbouring building. The complainant alleges that the accused has so used his engine as to cause damage to the complainant's house by means of vibration and the learned Magistrate has held that damage has been occasioned to the complainant's house by such means and that the accused must have known the consequences of his act. It is clear that if the accused has installed in his ' property an engine the working of which has damaged the complainant's pro-petty, the accused has rendered himself liable to a civil action for nuisance. But the question is whether he has also rendered himself liable to criminal prosecution for mischief, and when one recalls the very difficult question which often arises in civil actions for nuisance as to whether or not the damage to the plaintiff's building has been calised by the action of the defendant, it is certainly rather startling to find it suggested that in cases in which the plaintiff succeeds in a civil action the defendant may also be liable to a criminal prosecution. However, the question turns on the meaning of the word 'mischief' as defined in Section 425 of the Indian Penal Code. So far as material for the present purpose, the definition of mischief is, 'Whoever, with intent to cause, or knowing that he is likely to cause wrongful loss or damage to any person, causes the destruction of any property, or any such change in any property as diminishes its value or utility, or affects it injuriously, commits 'mischief '. Then in Explanation 1 it is provided that it is sufficient if the accused 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. The question really turns upon whether the accused knew that by his act he was likely to cause wrongful loss or damage to the property of the complainant. ' Wrongful loss' is defined in Section 23 of the Code as being ' loss by unlawful means of property to which the person losing it is legally entitled ', and I think that the expression in Section 425, ' wrongful loss or damage' must mean loss or damage by unlawful means. Now it is clear that there was nothing unlawful in the accused installing an oil-engine in his own property and working it in any way he chose, although if his working caused damage to a neighbour's property, the accused would be liable to a civil suit for damages. But, to my mind, it is impossible to say that the damage was caused by unlawful means, the working of the engine on the accused's own property being a lawful act. Mr. Abhyankar for the complainant has relied on the definition of the word 'illegal' in Section 43 of the Code. That definition includes anything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and it is argued that the word 'unlawful' in the definition of 'wrongful loss' must have the same meaning as the word 'illegal'. Generally speaking, I should say that there is no difference in meaning between the word 'unlawful' and the word 'illegal', but it does not follow that if one of those words is specially defined in a statute, and the other is not, the two words must necessarily have the meaning given to the one word by the definition. Prima facie, I should have thought that the word 'unlawful' or the word 'illegal' used in a Penal Code would not cover everything which gives rise to a civil suit, The word 'illegal' has been defined as covering everything which gives rise to a civil suit, but I am not prepared to say that in the Penal Code the word 'unlawful', which has not been so defined, must be taken throughout as having that very wide meaning. In my view, therefore, the accused here has not been guilty of causing damage by unlawful means. The- damage caused to the complainant's property, if attributable to what is in its nature a lawful act of the accused, must be dealt with by a civil Court, and, in my opinion, the accused is not liable to be convicted of mischief in this case. Section 425 contains a considerable number of illustrations, but none of them, in my opinion, suggest that the section was intended to cover an ordinary case of civil liability for nuisance such as the Court has to deal with in this case, and it would be, I think, undesirable to extend the operation of the section to such cases. The decisions of this Court in Queen-Empress v. Govinda Punja I.L.R.(1884) 8 Bom. 295 and in Emperor v. Balkrishna Narhar : AIR1924Bom486 are both illustrations of the tendency of the Court not to extend the offence of mischief so as to cover the subject-matter of mere civil actions. I think, therefore, the application must be allowed, the conviction and the order of the lower Court set aside, and the applicant acquitted.
N.J. Wadia, J.
3. I agree.