N.K. Sen, J.
1. This is a Rule calling upon the District Magistrate of 24-Parganas to show cause whythe conviction of the petitioners under Section 427 of the Indian Penal Code should not be set aside. The petitioners were convicted for having cut off a roofupon the complainant's verandah and for having levelled the raised earth of the verandah causing aloss of about Rs. 50/- to the complainant.
2. The complainant Nani Lal Naskar and the petitioners had a common passage passing by the south of their houses. It was alleged that the petitioners had illegally pulled down the thatch and levelled the plinth that the complainant had erected abutting his house. The complainant asserted that he had constructed this roof and the plinth about 3 months prior to the date of occurrence.
3. Mr. Nalin Chandra Banerjee has in this revisional application taken up several points, namely, that this case which was triable as a summons case should not have been tried according to the procedure laid down in the trial of warrant cases. Another ground taken by Mr. Banerjee is to the effect that the learned Magistrate issued process upon the report given by a person other than the person who was asked to make a report. Finally Mr. Banerjee has urged that upon the facts of the case an offence under Section 427 of the Indian Penal Code was not made out. As I think that Mr. Banerjee's last point has great substance in it. I do not think it necessary to discuss the soundness or otherwise of the other grounds taken in the revisional application before this Court.
4. Upon the findings of the learned Magistrate, it is clear that the verandah was constructed upon a common passage which used to be utilised by the members of the family of the complainant and of the accused. The learned Magistrate, therefore, addressed himself on the question whether the petitioners had cut the roof and removed the earth of the verandah in exercise of their right of private defence of property. In deciding the question the learned Magistrate thought that as the roof was constructed about 3 months before the occurrence it could not be said that the petitioners cut out thy roof and removed the earth in exercise of the right of private defence. He has not, however, come to the conclusion that the action of the petitioners was not in good faith.
5. In order to obtain a conviction on a charge of mischief the prosecution will have to prove that the accused with the intent to cause or knowing that he is likely to cause wrongful loss or damage ..... to any person causes destruction of any property or any such change in the property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously. In other words, this section necessitates three things : (1) an intention or knowledge of likelihood to cause wrongful loss or damage to the public or to any person, (2) causing the destruction of some property or any change in it or in situation, and (3) such change must destroy or diminish its value or utility or affects it injuriously. It will, therefore, be seen that no mischief can be committed where the acts complained of amount to an invasion of civil right. All damages to a property do not amount to mischief within the meaning of the Indian Penal Code. If the owner of a land over which another or a body of others have a right either of passage or other use throws earth upon the land so that the use becomes either disadvantageous or impossible, it does not amount to mischief. This is what was held in some cases and this also appears upon a plain construction of the section itself. I am of the opinion that in this case the allegations of the complainant amount to, if anything, art invasion of civil right.
6. I, therefore, set aside the order of conviction and sentence passed on the petitioners andmake the Rule absolute. The fines, if paid, will berefunded.