1. In this case the Magistrate who tried and convicted the accused was satisfied on the evidence in the case that the accused set fire to some rubbish in his own field in such close proximity to a Government forest that he knew he was likely to cause destruction by fire to Government property, if he did not take precautions to prevent the spreading of the fire he had lit and he took no real precaution. The conclusions arrived at by the Magistrate on the statement of the accused himself, establish the offence of mischief. Under the definition of mischief in Section 425, Indian Penal Code, ' whoever with intent to cause or knowing that he is likely to cause wrongful loss or damage causes destruction of any property, commits mischief.' And under the explanation to that section it is sufficient if he knows he is likely to cause damage to any person by injuring any property. So that, even if we went into the facts, I see no reason to come to a different conclusion from that arrived at by the Magistrate who tried the case.
2. The District Magistrate has referred the case, not because he has come to the conclusion that the prosecution was detrimental to the interests of forest administration (a reason of doubtful materiality in an application for revision), but because the accused has 'failed to appeal.' Under Section 439, Clause 5, we are precluded from exercising our powers of revisioa at the instance of an accused who had a right of appeal and did not exercise it. That the accused himself has not appealed is not a sufficient reason for referring this case to us to exercise our powers of revision. Moreover it is a well established rule of this Court that in exercising the powers of revision this Court interferes, on questions of fact, only in very exceptional circumstances. The jurisdiction of the High Court to interfere on questions of fact has often been affirmed: and that in very exceptional cases this power should be exercised is obvious, such as where there has been a conviction of a clearly innocent person and but for the powers given to the High Court to interfere as a Court of Revision the only remedy A would be by petition to the Government to exercise its powers of prerogative.
3. It is suggested that the District Magistrate as Collector is concerned in the forest administration of his District but we are concerned to see that unnecessary uncertainty is not introduced into the administration of justice by disregard of settled rules of practice.
4. I agree with the trying Magistrate both in his view of the law and his view of the facts. And even if I might take a different view of the facts there is in the accused's own admissions as set out in the judgment sufficient evidence to support the trying Magistrate's finding on the facts, and there is no such exceptional circumstance as would call for departure from the settled practice, both as to not interfering when a right of appeal has not been exercised, and not interfering on the facts when no very exceptional circumstances exist.
5. For these reasons I do not think that this is a case which calls for pur interference in revision.
6. In this case it is my misfortune to have to differ from my learned colleague. It seems to me in the first place that there is a question of law-that question being whether the established facts as to the acts of the accused come within the definition of mischief in Section 425, Indian Penal Code. It is evident from the judgment of the convicting Magistrate and from the reference made by the Magistrate of the District that the injury caused to the forest arose out of an act in itself innocent and natural and was wholly unforeseen and unintended being due to the wind. The District Magistrate in his reference says that it was a gust of wind which carried the flames to the adjoining forest. It is also clear from the papers before us that the accused did what he could to obtain help and stop the spread of the fire. These being unquestioned facts I am of opinion that it is not clear that an offence such as is defined by Section 425, Indian Penal Code, was committed.
7. I think it the more necessary for this Court to interfere in this particular case because the damage done was to grass in forest land and the reference has been made by the District Magistrate who is also the Collector of the District and as such nearly concerned in the maintenance of the forest and in preventing damage thereto, If the administrative head of the District takes the step of referring a conviction of this kind to this Court in order that it may be set aside, that fact is in itself a strong reason for interference by this Court if such interference is justified by the circumstances of the case.
8. With reference to the last clause to Section 439, Criminal Procedure Code, I may point out that the reference in order to secure revision by this Court is made by the District Magistrate and therefore that clause does not govern this case.
9. For these reasons I am of opinion that the conviction should be set aside and the fine restored to the accused.
10. Owing to this difference in opinion the case was laid before the Hon'ble Mr. L.P. Russell, acting Chief Justice, for disposal, under Section 378 of the Code of Criminal Procedure Code, 1898.
Russell, Ag. C.J.
11. I have carefully perused the judgments in this case.
12. Upon the merits it appears to me impossible to say that the accused when he set fire to the heap of rubbish on his own ground did so knowing that he was likely to cause any wrongful loss.
13. It further appears to me that it cannot be said that he 'caused' the destruction of the Government Forest. To hold him guilty of so doing would in my opinion make him liable because the wind happened to be in the direction of the Government forest, which of course is out of the question. The case seems to me analogous to cases of alleged mischief done by straying of cattle, and there are many cases to show that mere neglect or carelessness on the part of the owner of cattle to keep them from straying in the fields of others is not sufficient to constitute the offence of mischief. Here in my opinion the facts do not at the outside show more than ' mere neglect or carelessness' on the part of the accused to keep the fire from straying into the Government forest.
14. As to the question whether this Court can interfere, I ebserve that Mr. Justice Aston, whose intimate knowledge of the. Criminal Procedure Code is well-known, says as follows :-'The jurisdiction of the High Court to interfere on the question of fact has often been affirmed and that in very exceptional cases this power should be exercised is obvious-: such as where there has been a conviction of a1 clearly innocent person and but for the powers given to the High Court to interfere as a Court of Revision the only remedy would be by a petition to the Government to exercise its powers of prerogative.'
15. In this case I am of opinion there has been a conviction of a clearly innocent person, and therefore,' this Court should interfere.
16. The result is that the conviction and sentence must be set aside and the fine, if paid, refunded.