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Ouseph and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1362
AppellantOuseph and anr.
RespondentState of Kerala
Cases ReferredSukumaran Nadar v. Sadasivan
Excerpt:
- - 1. the unsuccessful appellants in criminal appeal no. 1 and prevented him from conducting agricultural operations like ploughing which was being done by engaging a labourer p. no mischief can, therefore, be committed where the act complained of amounts to an invasion of civil right. the observation that 'no mischief can therefore, be committed where the act complained of amounts to an invasion of civil right' appears to have too broad a connotation and with all respect, i dc not agree with the same. there may be a number of acts which amount to invasion of civil right as well as commission of offence under the criminal law of the land......that on the south and north of the field there are channels into which the excess water of the accused's field can be let out. there is also evidence to show that the sluices opened are new ones. this evidence has been accepted by the two courts below and i do not find any reason to interfere with the concurrent conclusions of the courts be' low in this behalf. this evidence destroys the case of 'belief.'13. a few months before the occurrence, the complainant filed a suit and obtained ext. p2 injunction order restraining the accused from making any such sluices. that such an injunction order had been issued is not disputed before me. the argument is that the injunction order had not been served on the accused. pw 1 has spoken that the injunction order was actually served though he.....
Judgment:
ORDER

U. Lakshminarayana Bhat, J.

1. The unsuccessful appellants in Criminal Appeal No. 7/78 on the file of the Chief Judicial Magistrate, Thodupuzha. are the revision petitioners herein. The Judl. 2nd Class Magistrate, Thodupuzha in C.C. 631 of 1977 convicted them for an offence under Section 426 I.P.C. and sentenced them to pay a fine of Rs. 100/- each and in default to undergo simple imprisonment for 15 days each. They were acquitted of the charge under Section 291 I.P.C.

2. The de facto complainant examined as P. W. 1 in the trial court filed a complaint before that Court on 10-10-1977 alleging that on the morning of 6-10-1977 the revision petitioners-accused, who are owners in possession of the paddy field lying adjoining the paddy field of P.W. 1 and at a higher level, cut open three sluices in the intervening bund and let. out excess water from their field to the field of P.W. 1 and thereby inundated it and prevented him from carrying on agricultural work, as a result of which he sustained loss of Rs. 30/. A complaint was forwarded to the Sub Inspector of Police, Thudupuzha under Section 156(3) Cr.P.C. The latter registered a case as Crime No. 214/ 77 as per Ext. P 4, F. I. R. under Sections 426 and 291 I.P.C. investigation was conducted by a Head Constable of Police. P.W. 5. and the Sub Inspector of Police laid the charge. The trial court framed charges under Sections 426 and 291 I.P.C. against the accused. They pleaded not guilty. The. prosecution examined 5 witnesses and marked Exts. P. 1 to P. 4. The defence did not tender, any evidence. The accused, when questioned, stated that the sluices were in existence from time immemorial and the water was being all along let into the lower field, that this was being done in exercise of a right of easement and that they had no intention to cause any damage or loss to P. W. 1. The learned Magistrate, however, accepted the prosecution version of the occurrence as true and convicted them under Section 426 I.P.C. but acquitted them under Section 291 I.P.C. on the ground that a public nuisance had not been established. The conviction and sentence were confirmed by the Chief Judicial Magistrate, Thodupuzha.

3. The accused, father and son. owned and possessed a paddy field adjoining to and at a level higher than the field of P.W. 1. P.W, 1 alleged that in the bund in between the two paddy fields there were no sluices or openings and there was an earlier attempt by the accused to open sluices and thereupon he filed a suit O.S. 165/77 before the Munsiffs Court, Thodupuzha and obtained an injunction order, a copy of which is Ext. P. 2. The injunction order was served on the accused. However, on 6-10-77 in violation of the injunction order and with intention of causing wrongful loss to P. W. 1 they cut open three sluices in the intervening bund as a result of which excess water from the higher field collected in the lower paddy field of P. W. 1 and prevented him from conducting agricultural operations like ploughing which was being done by engaging a labourer P. W. 3, and P. W. 1 sustained a loss of Rs, 30/-. The accused contended that they had an easement right to let out excess water to the paddy field of P. W. 1, asserted that the sluices were very old sluices and denied having made any sluices on 6-10-1977, They also contended that they were not aware of the injunction order. Besides examining the complainant to speak about the occurrence on the basis of which the prosecution was launched. P. Ws. 2 and 3 were examined to speak about the occurrence. All the three witnesses not only spoke to the occurrence, but also deposed that there were no pre-existing sluices in the intervening bund and that for the first time they were made only at the time of occurrence by the accused. P. W, 3 was actually ploughing the field of P. W. 1 at that time. P.W. 2 was actually working for the accused in the upper field of the accused. This evidence is supported by the scene mahazar Ext. P. 3 attested by P. W. 4 and prepared by P.W. 5. Their evidence shows that within a short time after the occurrence 3 new sluices were found in the intervening paramba. The oral evidence and scene mahazar also show that water from the upper field could be conveniently let out to the channels existing on the south and north and a portion of P. W. l's field had been ploughed. P. W. 1 also deposed that the injunction order was actually served on the accused. On a consideration of the evidence and circumstances of the case the two courts below accepted the oral evidence in the light of the documents. Having carefully gone through the evidence and the two judements, I do not find any ground to interfere with the acceptance of the two courts below of the prosecution version of the occurrence.

4. The main argument advanced by the learned Counsel for the revision petitioners is that even assuming prosecution version to be true, an offence under Section 426 I.P.C. is not made out. because whatever act was attributed to the accused was done as a claim of right and with no mens rea. He has placed reliance on the decisions in Mathri v. State of Puniab : [1964]5SCR916 , Kunian Ammini v. State of Kerala 1967 Ker LT 621. Varghese v. Mariamma 1967 Ker LT 497 : 1967 Cri LJ 1419, Pappu v. Damodaran 1967 Ker LT 918 : 1968 Cri LJ 625 and Sukuma-ran Nadar v. Sadasivan 1972 Ker LT 1063.

5. The Supreme Court decision deals at length with the ingredient, namely, intention to annoy, found in Section 441 I.P.C. and lays down that it is necessary to establish such an intention. In coming to a conclusion in this regard, the court has to take into consideration all relevant circumstances including the presence of knowledge that the natural consequence of the entry would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such annoyance etc. being the dominant intention which prompted the entry.

6. In the decision in Varghese v. Mariyamma (1967 Ker LT 497); (1967 Cri LJ 1419) the prosecution alleged trespass into the property of the complainant with intent to intimidate, an-nov and insult him. The complainant claimed possession in spite of a sale deed by his father in favour of the ac- cused. The accused also set up his independent possession. The trial Magistrate held that the intention of criminal trespass was not made out as the dominant intention of the accused was not to intimidate, insult or annoy but to establish his claim to the property. this Court relied on the Supreme Court decision referred to above in coming to the conclusion that the court has to look for the dominant intention.

7. The decision reported in Kunian Ammini v. State of Kerala 1967 Ker LT 621 deals with the case of a charge for trespass against a pregnant girl, who entered the house of a person whom she claimed to have caused her pregnancy. The entry was found to be not with the intention to cause intimidation, annoyance or insult, but with the object of compelling him to marry her. It was held that mere knowledge that the entry will cause annoyance was not sufficient and the dominant intention was not to annoy, insult or intimidate. The accused was acquitted.

8. All the three decisions referred to above deal only with a charge of trespass. Section 441 I.P.C. requires a particular mens rea, namely, 'intention to commit an offence or to intimidate, insult or annoy' a person in possession of the property. When we compare Section 441 I.P.C. with Section 425 I.P.C. we find that there is a material difference in the mens res required for the offence of criminal trespass and for the offence of mischief. Saction 425 I.P.C. lays down that the mens rea must be 'with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person'. This mens rea contemplated under Section 425 I.P.C. is seen to be much wider in scope than the mens rea contemplated for trespass in Section 441 I.P.C. Even if there was no intent to cause wrongful loss or damage the act would amount to mischief if the act was done by the accused with the knowledge that thereby, he was likely to cause wrongful loss or damage. In view of this vital difference between the definition of the two offences. I find the proposition laid down by the Supreme Court in Mathri's case (1964) 2 Cri LJ 57 and by this Court in Kunian Ammini's case 1967 Ker LT 621 and Varghese's case 1967 Cri LJ 1419 will not apply to a case of mischief.

9. The decision in Pappu v. Damo-dharan 1967 Ker LT 918): 1968 Cri LJ 625 dealt with a case, where the complainant put up a fence between his land and the land of the accused and the accused entered the land and removed the fence thereby causing loss. The accused claimed that they did the act because it was their property. The trial Magistrate acquitted them on the ground that there was a bona fide dispute regarding title and possession regarding the part of the land on which a fence was put up by the complainant and the accused were actually abating the nuisance. Before this Court it was argued that the act of the accused was done under a claim of right even if it be without reasonable grounds and that this was sufficient to exonerate them. this Court accepted the argument and held a claim of right believed to exist, even if the belief was unreasonable, was a valid defence. But if the assertion of right was a mere pretence it would not help the accused. Because it was found that the accused entertained a belief that they were the owners and the complainant had no right to construct a fence, the acquittal was confirmed.

10. In the decision reported in Suku-maran v. Sadasivan (1972 Ker LT 1063), the complainant in a private complaint urged that the accused dug a trench in his land adjacent to the wall of the complainant's building, as a result of which, the wall developed a crack and the basement was damaged. It was urged that the accused was guilty of the offence of mischief the claim of the complainant was evidently based on right to lateral support. He claimed to have acquired a right of easement. But then evidence showed that his building was constructed only 4 years prior to the occurrence and this Court came to the conclusion that he had not prescribed for a right of easement: his finding would have been sufficient to hold that an offence of mischief was not committed and consequently the acquittal could have been confirmed. But after coming to such a conclusion, this Court proceeded to consider whether an offence would be made out even if the complainant was assumed to have an easement right. this Court considered three ingredients mentioned in Section 425 I. P. C, and held that the act did not amount to an act of mischief. The reasoning reads thus;

No mischief can, therefore, be committed where the act complained of amounts to an invasion of civil right. So, in order to attract the provisions of this section, it must be held that the respondent's action was by unlawful means. It cannot be said by any stretch of imagination that it would be unlawful to do something on your own land without trespassing on your neighbour's land, though it may necessarily cause injurious effect, to the property of our neighbour.

11. On carefully going through the decision in Sukumaran Nadar v. Sadasivan (1972 Ker LT 1063). it is seen that the observations extracted above were obiter. They were unnecessary for the disposal of the case, since the case could have been disposed of on facts. The observation that 'No mischief can therefore, be committed where the act complained of amounts to an invasion of civil right' appears to have too broad a connotation and with all respect, I dc not agree with the same. There may be a number of acts which amount to invasion of civil right as well as commission of offence under the criminal law of the land. It cannot be,, said the merely because an act also amounts to an act of invasion of civil right or tort, it ceases to be or cannot be regarded as a crime or an offence. Hence I am not able to agree with the learned Counsel for the revision petitioners that the opening of the sluices and allowing water to flow into the complainant's land may amount to an invasion of civil right and therefore it cannot be a criminal offence.

12. It has been further contended that the accused believed that they had a right to make openings in their own field bund and therefore their act must be regarded as one done on a claim of right and is protected. The olea of the accused is that the sluices existed from time immemorial and are necessary for letting out the excess water collected in their paddy field. There is evidence to show that on the south and north of the field there are channels into which the excess water of the accused's field can be let out. There is also evidence to show that the sluices opened are new ones. This evidence has been accepted by the two courts below and I do not find any reason to interfere with the concurrent conclusions of the courts be' low in this behalf. This evidence destroys the case of 'belief.'

13. A few months before the occurrence, the complainant filed a suit and obtained Ext. P2 injunction order restraining the accused from making any such sluices. That such an injunction order had been issued is not disputed before me. The argument is that the injunction order had not been served on the accused. PW 1 has spoken that the injunction order was actually served though he does not remember the date on which it was served. There does not appear to be any reason not to accept his evidence in this behalf. It is in accordance with probability also.

14. Assuming that accused initially believed that they had a right to make openings in the bund and let excess water to flow into the paddy field of the complainant, the accused would not have continued to hold such a belief when a competent court restrained them from doing so by an order of injunction. Considering the entire circumstances of the case it appears to me that the claim asserted is a mere pretence to do some harm to the complainant. I find the two courts below have properly considered all the aspects of this question and come to a correct conclusion. It is not argued before me that the other ingredients of the offence of mischief have not been established by the evidence on record.

15. The learned Counsel for the revision petitioners contended that the two courts below were carried away by the fact that there was an injunction by the civil court, though there was an acquittal of the accused under Section 291 I.P.C. It was further argued that if the injunction ware violated the remedy was to move the civil court for appropriate action. I agree that the violation of the injunction order by itself can have no bearing in approaching the facts of the case or assessing the credibility of the witnesses. But it will certainly have a bearing in considering the mental state of the accused. In the face of the injunction order, he did an act which he was prohibited from doing; there can be no doubt that he was put-tine forward the claim only as a pretence to do harm to the other side. It cannot be regarded as a bona fide claim of right.

In the result, I do not find any reason to interfere with the conviction and sentence entered against the revision petitioners. The revision petition is dismissed.


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