Mischief: Concept, Essentials and Detailed Explanation

By | May 22, 2020
Mischief: Concept

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Mischief: Concept, Essentials and Detailed Explanation | Overview

What is mischief and when is it an offence punishable under the penal code? These are answered in this article. It introduces the offence of mischief and what makes it an offence of criminal liability. In any offence the essentials play an important role, thus, the essentials are explained with details and case laws which help in conviction of the accused under this section.

Further, the punishment for the offence of mischief under section 425 is mentioned. Apart from these the aggravated forms of mischief which are dealt in sections 427 to 440 are all briefly explained with the help of classification of those offences.

Introduction

The offence of cheating, its forms and its punishment are dealt in the category “Of Mischief”[1] under the chapter titled “Of Offences Against Property”[2] in the penal code of India.

425 Mischief— Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”

 Explanation 1— It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed; It is sufficient if he 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

 Explanation 2— Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly

The offence of mischief is usually based on the maxim of – “sic utere tuo ut alienum non laedas” which means to use the property of one’s own in such a manner as to not to injure the property of another. Basically mischief is to injury or damages the property of another which destroys or diminishes its value or utility.[3]

This offence does not include the acts caused due to negligence or accident. The offence of mischief requires both “actus reus” as well as “mens rea” to damage or injury property of a neighbour.[4] But the acts caused by negligence or accident can not amount to mischief until and unless it is done wilfully with intention or knowledge.[5] For example, when a person burns rubbish in his own fields but that passes to the neighbouring forest area. Then the damage caused does not amount to mischief.[6]

In the act of mischief, there is loss caused to the victim but it cannot be a valid defence when the accused claims to have merely gained due to mischievous act with no loss caused to the victim.[7] The offence of mischief is applicable to both movable and immovable property.[8]

Essentials

The following are the essentials of mischief-

  1. There must be “intention” or “knowledge”- “mens rea”
  2. There must be “Actus reus”- (a. “To cause wrongful loss or damage” or; b. “Likely to cause wrongful loss or damage” or; c. “Causes the destruction of any property” or; d. “Causes the destruction of any such change in any property or in the situation thereof”)
  3. It must be towards- (a. “The public” or; b. “Any person” c. Such actus reus “destroys or diminishes its value or utility, or affects it injuriously”)

Thus, if the above essentials are fulfilled it is an offence of mischief. If the act is merely an invasion of a civil right then it is not an offence, as it requires criminal liability.[9] Hence, the mens rea plays an important role to consider an act as an offence of mischief. The prima facie case can be made out under section 425 only when both the elements are proved i.e., actus reus and mens rea.

In the case of Bihar State Electricity Board v. Nand Kishore Tamakhuwala, AIR 1986 SC 1653, when a mill filed a private complaint regarding loss incurred due to no power supply. The court observed that the accused had no intention or knowledge, as to cause or likely to cause wrongful loss or damage; or there was no destruction of property or such change in property or situation thereof. Further, no property of the complainant destroys or diminishes in the value or utility or incurs any injury. Thus, the court held there is no prima facie case of mischief and quashed the complaint.

Mens Rea: Intention or Knowledge

As it was mentioned earlier mens rea is essential for proving mischief. There can be no case of offence against an accused who causes wrongful loss or damage when there is no intention of the accused to do so.[10] Therefore when an accused removes obstruction in the property, which is not owned by him. But he feels he is obliged to do so, to be his right. If there is loss or damage caused then the accused cannot be held criminally liable due to lack of criminal intent to cause such loss or damage.[11]

If an accused had no intention but the knowledge that an act of his would cause or likely to cause wrongful loss or damage to the victim then it will be considered as an offence of mischief.[12] For example, if an accused causes the blockage of a canal to cease the water flow to the victim. And a victim who had a right to use that water incurs wrongful loss due to that. Then the accused is liable for mischief as he had the knowledge of the results of his acts.[13] The intention or knowledge is the mental elements and is to be proved through circumstantial evidence.

Actus Reus

The act of the accused to either cause wrongful loss or damage or destruction of property is essential to constitute an offence of mischief.

Wrongful Loss Or Damage

The terms “wrongful loss” or “damage” are used in section 425 to widen the scope and include not just acts of wrongful loss but the damage caused by any lawful means.[14] Thus, the damage may be of any degree; there must be a diminution in the value of the property and must be established by the victim contemplating the same. Therefore, the verbatim of the section provides for not only situations where the property is destroyed but also all those instances where the goods are injured or damaged which may have reduced the value or utility of those goods.

In the case of Juggeshwar Das v. Koylash Chander, (1835) ILR 12 Cal 55, the complainant kept his goods in a cart to transport and shift them to another place, when the accused came pushed the cart away intentionally, the court held the accused of wrongful restraint. But when an appeal was made, the court held the accused convict for the offence of mischief as the goods diminished in their value due injurious effect of the act of the accused.[15]

Even though a person has right over the property, it is no defence to destroy or cause damage or wrongful loss to the property of the victim in any unlawful way.

In the case of Arjuna Gouda v State of Orissa, AIR 1969 Ori 200, the accused destroyed the crops grown by the complainant in the land which belonged to the government. The act of the accused being intentional and with complete knowledge that the victim’s property would suffer damage and wrongful loss is an offence of mischief. The conviction was held even though the land belonged to the accused.[16]

Further, there are instances where the accused may be the real owner, in such cases the destruction or demolishment must be with reference to the wrongful loss caused to the victim’s property and not the owner’s.[17] For example when the complainant builds up an obstruction in the rightful owner’s property, then it is not an offence of mischief if the obstruction is destroyed by the owner himself.[18]

Destruction or any change in the property or situation thereof:

The destruction or any change in the property caused must be physical change or physical destruction due to some physical cause. When a person’s cattle go to the neighbouring farm and gazes around the land, is not an offence of mischief. But when an accused sets his cattle loose wilfully in the agricultural land belonging to the government, if the cattle grazed upon the grass it is an act of mischief as the property undergoes change due to physical act. It is a deprivation to the government caused due to cattle gazing over their land.[19]

Affect of the mischief: destroy or diminish the value or utility

When the section specified that the property must be destroyed or diminished in its value or utility, what exactly it meant was not known to many and it was mooted as a question of law to be solved in the court of law. It was important to know this as the case involved circumstances where the victim was deprived to use the water supply due to blockage created by the accused.

In the case of Byomkesh Bhattacharya v. Lakshmi Narayan Dutta, (1978) Cr LJ 848 (Cal), the court decided that the destruction or diminishing of value or utility does not mean change it the form or character or composition of the property but it was mean to be changed in its natural usage or serviceability. Which makes its value or utility to diminish or destroy or obstruct the victim’s natural way of enjoyment of that property, on which he has a right or is entitled to use or enjoy so.[20]

Thus, the effect of destroying or diminishing the property’s value or utility is essential for constituting an offence of mischief.[21] Further, the change in the property or its value or its utility should be the proximate result of the act committed by the accused, satisfying other essentials, to constitute an offence of mischief.[22]

Punishment for the offence of mischief

The punishment for mischief is provided in section 426 of the penal code.[23]

426 Punishment for mischief— Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both”

Aggravated Forms Of Mischief

There are many aggravated forms of mischief. The classification adopted to explain the aggravated forms of mischief is as follows-

1. Mischief based on the damage caused

This category has one section which is a form of mischief depending upon the monetary value of the property in question. Section 427 is a kind of offence which is based on the amount of damage caused.[24]

427 Mischief causing damage to the amount of fifty rupees— Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”

2. Mischief based on the nature of property damaged

This category is based on the nature of the property which is damaged and includes sections 428 to 434.

428 Mischief by killing or maiming animal of the value of ten rupees— Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal or animals of the value of the ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”

This section punishes “mischief by killing or maiming animals of the value of ten rupees”.[25] This section aims to protect and safeguard the animals from the violence of mischief by human beings. In this section too it is necessary to prove the mens rea. Mere wounding would not be considered as maiming as punishable under this section.[26]

429 Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees— Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”

This section punishes “mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees”.[27] The difference between section 429 and 428 is the value of the victim animal and the severity of the act. The applicability of section 429 depends upon the applicability of section 425.[28] Mere negligence or carelessness by the accused is not enough for conviction.[29] The actus reus and mens rea need to be proved.[30]

430. Mischief by injury to works of irrigation or by wrongfully diverting water— Whoever commits mischief by doing any act which causes, or which he knows to be likely to cause, a diminution of the supply of water for agricultural purposes, or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”

This section punishes the offence of “mischief caused by injury to works of irrigation or by wrongfully diverting water”.[31] The conviction depends upon the proof infringement of the right of another.

431 Mischief by injury to public road, bridge, river or channel— Whoever commits mischief by doing any act which renders or which he knows to be likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”

This offence is committed by causing “mischief by injury to any public road, bridge, navigable river or navigable channel”.[32] This offence can be proved only when the injury caused to the property is proved to be public property.

432 Mischief by causing inundation or obstruction to public drainage attended with damage— Whoever commits mischief by doing any act which causes or which he knows to be likely to cause an inundation or an obstruction to any public drainage attended with injury or damage, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both”

The section punishes “mischief caused by causing inundation or obstruction to public drainage attended with damage”.[33]

433 Mischief by destroying, moving or rendering less useful a light-house or sea-mark— Whoever commits mischief by destroying or moving any light-house or other light used as a sea-mark, or any sea- mark or buoy or other thing placed as a guide for navigators, or by any act which renders any such light-house, sea-mark, buoy or other such things as aforesaid less useful as a guide for navigators, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both”

This section punishes the “mischief committed by destroying or moving any light-house or other light used as a sea-mark, or any sea- mark or buoy or other thing placed as a guide for navigators”, as they are very helpful.[34] Its punishment is severe as its destruction is considered as disastrous.

434 Mischief by destroying or moving, etc, a land-mark fixed by public authority— Whoever commits mischief by destroying or moving any land-mark fixed by the authority of a public servant, or by any act which renders such land-mark less useful as such, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both”

This section deals with the “mischief committed by destroying or moving, etc, a land-mark fixed by public authority”.[35] The punishment for this section is less severe than compared to section 433 as its effect is not severe.[36]

Mischief based on the method adopted to damage property

This category focuses on the way adopted to damage the property while committing mischief. It includes sections 435 to 438 of the penal code. Sections 435 and 436 are known as the offences of arson. The section 435 deals with the offence of “mischief caused by fire or explosive substance with intent to cause damage to the amount of one hundred or (in case of agricultural produce) ten rupees” and is less severe in nature.[37]

435 Mischief by fire or explosive substance with intent to cause damage to the amount of one hundred or (in case of agricultural produce) ten rupees— Whoever commits mischief by fire or any explosive substance intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or upwards or (where the property is agricultural produce) ten rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine”

436 Mischief by fire or explosive substance with intent to destroy house, etc— Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”

The section refers to mischief by fire or explosive substance with the intention to destroy a house.[38] The “house” includes the building used for “place of worship or human dwelling or place for the custody of property”. There are various types of buildings which are meant for the above purposes are held to be within the ambit of section 436, as it is not mandatory for the building to be one which is fully constructed.

For example, a hut without doors or furnishing[39] or a hut made of grass meant for the purpose of cattling[40]. But constructions like a shed with no doors but resting on bamboos[41] or the wooden removal cabin[42] are not considered to be covered by section 436.

Section 436 is considered as the aggravated form of arson. As arson can lead to not only destruction of property or building but also the death of people or animals living in that building.[43] It is essential to establish the identity of the accused who took part in committing an offence under this section. If the evidence is not sufficient to prove the same the accused will be imposed less severe sentencing.[44]

437 Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden— Whoever commits mischief to any decked vessel or any vessel of a burden of twenty tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that he will thereby destroy or render unsafe, that vessel, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”

This section provides an aggravated form of mischief which is caused to a vessel[45] and the terms used in the verbatim makes it clear that this offence excludes the smaller vessels from its purview. Further, the vessel is defined in the penal code as ‘anything made for the conveyance by water of human beings or of property’.[46]

438 Punishment for the mischief described in section 437 committed by fire or explosive substance— Whoever commits, or attempts to commit, by fire or any explosive substance, such mischief as is described in the last preceding section, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”

This section describes “punishment for the offence committed as per section 437 but by fire or explosive substance”. This section imposes harsher punishment compared to the previous one.[47]

Mischief based on other criminal motives:

This category includes section 439 and 440 which are mischief committed with other criminal motive or intentions.

439 Punishment for intentionally running vessel aground or ashore with intent to commit theft, etc— Whoever intentionally runs any vessel aground or ashore, intending to commit theft of any property contained therein or to dishonestly misappropriate any such property, or with intent that such theft or misappropriation of property may be committed, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”

This section mainly covers the offences of robbery or theft upon the sea. This section punishes “for intentionally running vessels aground or ashore with intent to commit theft or other related offences and misappropriation”.[48]

440 Mischief committed after preparation made for causing death or hurt— Whoever commits mischief, having made preparation for causing to any person death, or hurt, or wrongful restraint, or fear of death, or of hurt, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine”

This is the aggravated form of mischief which punishes “the offence of committing mischief after the preparation is made of causing death, or hurt, or wrongful restraint, or fear of death, or of hurt, or of wrongful restraint of any person”.[49]


[1] Indian Penal Code 1860, ss 425-440

[2] Indian Penal Code 1860, ch XVII

[3] K I Vibhute, PSA Pillai: Criminal Law (12 edn, LexisNexis 2014)

[4] Nagendranath Roy v. Dr Bijoy Kumar Das (1992) Cr LJ 1871(Ori)

[5] Ved Prakash v. Chaman Lal (1995) Cr LJ 3890(All)

[6] Re Nandayapa Gowda (1906) 8 Bom LR 851

[7] Public Prosecutor v. Semalai Pannadi AIR 1960 Mad 240

[8] Ram Birich Mahato v. Bishwanath Misser (1961) 2 Cr LJ 265 (Pat)

[9] Sailen Sardar v. State of West Bengal AIR 1958 Cal 668

[10] Ram Chandra v. State AIR 1969 Bom 20

[11] Sebastian Labo v. Minigal D’Souza AIR 1932 Mad 676

[12] Ouseph v. State of Kerala (1981) Cr LJ 1362 (Ker)

[13] Kanniah Chettiar v. Kuppuswami Chettiar (1961) 2 Cr LJ 501 (Mad)

[14] Gopinath Nayak v. Lepa Majhi (1996) Cr LJ 3814(Ori)

[15] Juggeshwar Das v. Koylash Chander (1835) ILR 12 Cal 55

[16] Arjuna Gouda v. State of Orissa AIR 1969 Ori 200

[17] Gobardhan Malik v. Rasananada AIR 1968 Ori 18

[18] Re Gollakota Suryanarayana Murthy AIR 1940 Mad 747

[19] Re Gurram Siddagadu, 1 Weir’s Cri Rule 492

[20] Byomkesh Bhattacharya v. Lakshmi Narayan Dutta (1978) Cr LJ 848 (Cal)

[21] IH Khan v. VM Arathoon (1969) Cr LJ 242 (Cal)

[22] Kameswar v. Bhola Nath (1969) Pat LJR 430

[23] Indian Penal Code 1860, s 426

[24] Indian Penal Code 1860, s 427

[25] Indian Penal Code 1860, s 428

[26] Gopala Krishna v. Krishna Bhatia AIR 1960 Ker 74

[27] Indian Penal Code 1860, s 429

[28] Keshub ahindra v. State of Madhya Pradesh (1996) 6 SCC 129

[29] Suyambu Nadar v. State of Tamil Nadu (1999) Cr LJ 394 (Mad)

[30] Johri v. State of Rajasthan AIR 1970 Raj 203

[31] Indian Penal Code 1860, s 430

[32] Indian Penal Code 1860, s 431

[33] Indian Penal Code 1860, s 432

[34] Indian Penal Code 1860, s 433

[35] Indian Penal Code 1860, s 434

[36] Kannan Pillai v. Ismail (1961) KLT 656

[37] Indian Penal Code 1860, s 435

[38] Indian Penal Code 1860, s 436

[39] Jaipal Singh v. State of Haryana (1979) Punj LR 697

[40] Ponnai Goundan v. Emperor (1934) Mad VIN 687

[41] Perbata v. State of Uttar Pradesh (1990) Cr LJ 1665 (All)

[42] Bherulal v. State of Rajasthan (1999) Cr LJ 617 (Raj)

[43] State of Uttar Pradesh v. Dansingh AIR 1997 SC 1654

[44] Jamuna Singh v. State of Bihar AIR 1967 SC 553

[45] Indian Penal Code 1860, s 437

[46] Indian Penal Code 1860, s 48

[47] Indian Penal Code 1860, s 438

[48] Indian Penal Code 1860, s 439

[49] Indian Penal Code 1860, s 440


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