What is Mischief?

The definition of mischief is mentioned under Section 425 of IPC & the punishment is prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific punishment prescribed for aggravated forms of mischief depending upon the nature & the value of the property damage.

As per the Section 425 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) that whenever anyone performs an act either having an intention to cause or is aware that his act is likely to bring, some destruction or damage to any property, destroying or diminishing its value and utility, hence, resulting in an undue loss or damage to the public or any person is said to commit mischief.

In simpler terms, it can be understood as when an individual intends to perform an act or has the knowledge that his/her act will create hindrance in allowing another person to enjoy the benefit of their property by one means or other, it is called a mischief. However, this act can be even against the public or against a specific person as well.

Illustrations
For a simple understanding, some examples of mischief that can be seen are:

1. 'A' destroys a car jointly owned by 'A' and 'B', intending wrongful loss to 'B
2. 'A', a student takes a copy of the question paper before the exam in order to diminish its utility.
3. 'A' damages important documents belonging to 'B', intending wrongful loss to 'B'.
4. 'A' causes cattle to enter into the property of 'B' so as to cause damage to his crops.
5. 'A' deliberately throws a ball at the neighbor's window.

Objective
The Law of Mischief under IPC is specifically drafted with an objective to provide protection against the destruction of property causing any wrongful loss or damage to the public or an individual. It is an extension to the legal maxim sic utretuoleadas which means "use your own property, but not in a way that can injure your neighbour's or other's property."

Illustrations

1. "A" intentionally sets X's home on fire causing him wrongful loss or injury.
2. "A" a doctor deliberately prescribed wrong medicine to "B's" cattle with an intent to cause wrongful loss or injury.
3. "C" diverts the flow of the canal in such a way to prevent "B" from irrigating his field causing him loss by damage of crops.
4. "B" tears off some important business-related documents of A to cause him financial loss.
5. "A" deliberately burns off the standing crop that was jointly cultivated by "A" and "B".
6. "B" intentionally damages a "signboard "installed by the order of the municipality causing wrongful losses & injury.

Case: Onkar and Anr. vs. Kapoorchand And Anr. on 4 August, 1965
Facts: On 21st April, 1962 Kapoorchand-opposite party No. 1 presented a complaint in the court of First Class Magistrate, Tonk, against the petitioners Onkar and Bajranga accusing them for an offence under Section 427, Indian Penal Code. The allegations in the complaint are that the opposite party is the manager of a 'dharmshala' constructed by his father Seth Chhaganlal and that there was a lime kiln in the dharmshala.

On 17th April, 1962 the accused petitioners destroyed the kiln and caused damage to the extent of Rs. 200 On 1st May, 1962 the Magistrate recorded the statement of the complainant and further examined two witnesses Ramkaran and Chatra and ordered that the complaint be taken on file for an offence under Section 426, Indian Penal Code. Processes were issued to the accused-petitioners for answering a charge under Section 426, Indian Penal Code. An offence under Section 426, Indian Penal Code, was triable as a summons case.

The Magistrate acting under Section 242, Criminal P. C. stated to the accused particulars of the offence of which they were accused and asked them whether they had any cause to show why they should not be convicted. The accused pleaded not guilty. The Magistrate held a trial in accordance with the procedure prescribed for a summons case, examined the prosecution evidence, recorded the statements of the accused and examined the witnesses produced by the accused and eventually convicted them of an offence under Section 426 Indian Penal Code and sentenced each one of the petitioners to a fine of Rs. 40, and in default, one month's simple imprisonment.

Held: In the present case the Magistrate not only took the case on file under Section 426 and issued processes to the accused to answer the charge under Section 426 but he also proceeded to hold an enquiry into the offence treating the offence as one under Section 426, Indian Penal Code. It is true that the Magistrate had not cared to look at the provisions of Sections 426 and 427 Indian Penal Code while commencing the trial. Even while stating the particulars of the offence the Magistrate referred to the damage to the extent of Rs. 200 alleged to have been caused to the complainant.

The manner in which the particulars of the offence were stated to the accused, I must say was far from satisfactory, yet there can be difficulty in arriving at a conclusion that he commenced the trial for an offence under Section 426 Indian Penal Code. There is thus a fundamental difference in the facts of the case AIR 1942 Mad 594 and the facts of the present case inasmuch as in the present case a trial for an offence under Section 426 Indian Penal Code was commenced and concluded. The decision in AIR 1942 Mad 594 is, therefore, distinguishable from facts.

Scope of Mischief
Mischief under Section 425 of IPC covers all those acts that cause any damage or destruction to the property resulting in any wrongful loss or damage. The scope of this section is wide and it applies in the case of both public as well as private damages.

However, the most important point is that it will not have any application in the cases where the element of intention is absent which is further elaborated in this article under the heading of Ingredients of mischief. It is also not essential that the person accused had some valid motive behind or must have benefited from the act of "mischief".

But some other significant questions of consideration are whether this act can be applied in the cases when the accused has damaged his/her own property? Or will it cover situations when the damage caused to the property is a consequence of an illegal act or default in payment?

Essential Ingredients
The elements essential for an act to be considered as mischief are:

• Intention or Knowledge to Cause Wrongful Loss or Damage (mens rea)
  Mens rea is the most essential element of any act constituting mischief. The accused should have an intention or knowledge of causing damage to any property or wrongful loss to any person. The intention of causing damage or wrongful loss alone is enough for it to be called mischief. The act may or may not be directed straight towards the owner of the property.
  
  An example of a communal disturbance, where people have the intention of destroying property but are least concerned about the ownership of the property. This falls into the criteria of mischief.
  
  In the case of Krishna Gopal Singh And Ors. vs the State Of U.P., it was held that the offense of mischief would not be committed if the accused has not committed an act with the intent to cause wrongful loss or damage to any person or the public at large. It also implies that acts done under any pressure, without the free consent of the accused; do not come under the ambit of mischief.
   
• Wrongful Loss or Damage
  The essential mental element while committing mischief should be directed towards causing 'destruction to the property', 'damage' or 'wrongful loss' to the public or any individual which will constitute the actus reus for the offense of mischief. The intention of the accuser can be that of causing wrongful loss or damage to any person. For example, tearing off some important documents relating to property or finances.
   
• Causing Destruction of Any Property or Any Change in It
  It is important that damage is caused by one way or the other and the damage should be a direct consequence of the alleged act. Mischief can also be caused by causing destruction or changes in any property. For example, changing the words of a speech or intentionally destroying something owned by somebody.
   
• Destroys or Diminishes Value or Utility, etc.
  Diminishing the value of something like, leaking out an exam paper or deliberately misplacing important files and folders in time of need constitutes mischief. The utility of the object shall be conceived from the perception of the owner and not the accused. In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors, the defendant removed the engines of the aircraft hence diminishing its utility and rendering it useless. It was held that the damage caused satisfied all elements of mischief and thus the offense of mischief was constituted.
   
• Aggravated Forms of Mischief
  We would now look upon the various forms and criteria of mischief stated in the IPC, which are as follows:
  
  • Based on The Value of Damage
    When mischief is committed and the damage caused can be quantified in terms then the punishment is based upon the magnitude of damage. Damage caused to any property amounting to fifty rupees and upwards or ten rupees and upwards in cases of damage to animals or agriculture is entitled with the punishment of imprisonment, fine or both.
     
  • Based on the nature of the property damage
    Section 428 to Section 434 deals with the punishment of aggravated forms of mischief based upon the nature of the property damaged. These sections state the difference in the punishment with the change in the magnitude of damage caused. General punishment is imprisonment or fine. In cases with a higher magnitude of damage, both can also be awarded. The term of imprisonment and the amount of fine is not constant and keeps varying according to the degree of mischief, damage caused and its effects.
     
  • Mischief by killing or maiming animal of the value of ten rupees or more
    Section 428 states the punishment for committing mischief of maiming or killing any animal of the value of ten rupees or above. Maiming refers to permanently injuring the animal and rendering it useless. The section states imprisonment for a term which may be extended to two years, a fine as deemed appropriate or both. The intention of the law here is to prevent cruelty to animals.
     
  • Mischief by Killing or Maiming Cattle, etc.
    Section 429 deals with the punishment for the same nature of the crime but for killing or maiming of 'cattle' which refers to an animal used for commercial purposes. The IPC tries to analyse the intent and motive behind any crime and thus it is assumed in this section that the accuser had the intention of maiming or killing the cattle with a motive to cause wrongful loss to the owner. Hence, it states imprisonment for a term which may be extended for five years, a fine or both for causing mischief to the cattle of the value of rupees fifty and upwards.
     
  • Mischief by Injuring Works of Irrigation
    Section 430 deals with the punishment for causing damage to the works of irrigation and rendering it useless or wrongfully diverting it in order to cause mischief. This section aims to prevent any sort of disturbance in the supply of water used for commercial purposes such as agriculture, manufacturing or essential needs such as drinking and storage. The punishment stated is imprisonment for a term which may extend to five years, a fine or both. It takes into account the intention of the accuser to cause wrongful loss to the person by committing the mischief.
     
  • Mischief by Injuring Public Road, Bridge, River or Channel
    Section 431 states the punishment for damaging any property used by the public at large for commutation. Causing damage to any public road, bridge, river or channel and rendering it useless or any less safe for traveling or conveying property attracts the application of this section. It assumes the intention of the accuser to cause wrongful loss to the public at large by destroying or diminishing the value of the property, for which, it states imprisonment for a term which may extend to five years, a fine or both
     
  • Mischief by Obstructing Public Drainage
    Section 432 deals with the punishment for causing inundation or obstruction to public drainage which is already damaged. It caters to the idea of causing destruction of the property and affecting the public at large for the sole purpose of mischief. Punishment stated remains the same as that of causing damage to public property.
     
  • Mischief by Destroying of Lighthouse or Seamark
    Section 433 deals with the punishment for causing destruction or disturbance to any lighthouse or sea mark placed as a guide for navigators. It takes into account the intention of misguiding the navigators as a part of mischief by either destroying or moving any sea mark in a way that renders it useless or diminishes its use. The punishment in this section is extended to imprisonment for a term with extension to seven years, fine or both. The increase of the punishment is due to the possibility of huge commercial or personal loss caused due to the mischief.
     
  • Mischief by Destroying of Landmark
    Section 434 also deals in a similar category as above, the only difference being the damage of landmarks instead of sea marks. The loss bared in this case would be less as compared to that of damaging sea marks. Hence the punishment in this section is reduced to imprisonment for a term which may extend to one year only, a fine or both. The landmark destroyed or diminished should be important and should have been fixed by the authority of a public servant.

Offences of Arson
Section 435 to 438 of IPC characterises mischief by the method adopted to cause wrongful loss or damage. It deals with the remedies provided by IPC in case of damage being caused by fire. These sections are together called offences of Arson.

Mischief by fire or explosive substance with intent to cause damage
Explanation: Sec. 435 covers those cases where the mischief is committed by fire or any explosive substance with intent to cause, or the knowledge that the act is likely to cause damage to any property. This section applies when the amount of damage incurred is one hundred rupees or upwards or ten rupees or upwards when the "property" damaged is an agricultural produce.

Punishment: The section prescribes imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Nature of offence: The offence under this Section is cognizable, bailable, compoundable, and triable by Magistrate of the first class.

Mischief by fire or explosive substance with intent to destroy the house
Explanation: Section 436 also deals with the mischief committed by fire or any explosive substance, but specifically applies when the damage is caused to any building which can be a house, place of worship or as a human dwelling or as a place for the custody of property.

Punishment: Considering the seriousness of the offence the punishment prescribed under this section is more grave which may include life imprisonment, or with imprisonment of either description for a term which may extend to ten years, and fine as the court may deem fit.

Scope: It has been pronounced by courts in various judgments that the word "property" used in this statute not only includes a well-furnished property with bricks and cement but is wide enough to cover structures made up of any material such as grass or matt hut and partially constructed structures as well.

Proof Requirement: One of the most essential requirements to establish an offence under Section 436 of IPC is that there must be some irrefutable evidence that the accused who actively set fire to the dwelling place or building or instigated someone to do it for him (see here). For example- a testimony of a direct eye witness against the accused that he/she set the property on fire.

Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden
Explanation: Section 437 deals with the mischief resulting in destroying or rendering unsafe any decked vessel or any vessel of burden twenty tons and above.
Punishment: The punishment for the offence includes imprisonment for a term which may extend up to ten years and fine.
Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.
Explanation: Section 438 is a special case of mischief specified in Section 437,i.e.when the similar mischief is committed with fire explosives destroying or rendering unsafe decked vessels of burden more than twenty tons.
Punishment: Though this offence attracts a more serious punishment i.e. life imprisonment or description of term extending up to 10 years & fine.
Nature of offence: The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Intentionally Running Vessel Aground or Ashore to commit theft
Explanation:
Section 439 specifically prescribes punishment for the mischief committed by running the vessel aground or ashore with the motive to commit theft or misappropriation of property.

Punishment:
It attracts imprisonment for a term as the court may deem fit or maximum extending up to ten years, and fine.

Nature of offence:
The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by the Court of Session.

Mischief committed after preparation made for causing death or hurt
Explanation:
Section 440 describes the punishment for committing mischief by making preparations with an intent to cause or create fear of death, hurt or wrongful restraint.

Punishment:
It lays down the punishment of imprisonment for a description of a term which may extend up to five years and a fine.

Nature of offence:
The offence under this Section is cognizable, bailable, non-compoundable, and triable by Magistrate of the first class.

Proposals to reform
Mischief, in the IPC, takes up 15 sections in all but still doesn't include all possibilities of the crime itself. It mentions the definition which is then followed by some scenarios in which 'mischief' is punished as a crime. These few scenarios, mentioned in the IPC, do not suffice the wide possibilities of acts that can be charged with mischief, due to which major cases involving any acts of mischief, which are nowhere mentioned in the IPC, depend upon the discretion of the courts for establishment and punishment of the crime.

Thus, it can be inferred that 'mischief' as a crime does not have a very solid hold of the procedural law and needs to be detailed further. Hence, a good reform under this section would be to elaborate further upon the acts which could in any possibility constitute mischief.

When accused is the owner of the damaged property
In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., the Court held that ownership or possession of the property is not a deciding factor in the matter of the application of section 425 of IPC. Thus, mischief is said to be committed even in cases when the accused is the owner of the property provided all the other essential ingredients mentioned are satisfied.

This is further evident from the illustrations (d) and (e) to Section 425. According to the facts of the above case, the petitioner alleged that the respondent removed the engines of the aircraft diminishing their value and utility. Since the appellants had the right to possess the aircraft it resulted in wrongful loss or injury hence the Supreme held that the allegations amounted to the offence of mischief as all the essential ingredients of mischief had been satisfied.

Default of Payment or Illegal Act
In case of disconnection of water supply, sewerage supply, electricity supply, telephone connection, etc., by the concerned departments resulting from the default in payment or an illegal act after following a due process will not come under the ambit of Mischief.

Punishment for Mischief
The punishment for Mischief is prescribed under Section 426 which states that it attracts imprisonment of a term which may extend up to three months, or with fine, or with both, as the court may deem fit.

Nature of offence: The offence under this Section is non-cognizable, bailable, compoundable, and triable by any Magistrate.

Judgment
Nagendranth Roy vs. Bijoy Kumar Das Verma
Petitioner's complaint indicated the following background: A calf belonging to him suffered from ailment on 12-4-1986. As the ailment aggravated, opp. party No. 1 who is a Veterinary Doctor was called for rendering medical check-up. Opp. party Mo. 1, after checking prescribed certain medicines and infections:
The daughter of the complainant-petitioner objected to administration of prescribed injection, since she felt that that was risky to be administered, and requested the Doctor to prescribe some other medicine to be orally administered. He prescribed some pills which were given to the calf. On 14-4-1986 the calf suffered from another attack of fits. After examination of its stool, the next day the Doctor prescribed certain injections.

These lime injections were administered notwithstanding protest. A few minutes after such administration, the calf died. Case of the complainant was that both the Doctor and Stockman, opp. party Mo. 2 who administered injections were negligent in their duties. They did not care to check up attendant risk in administering the injections.

With reference to certain text books of Veterinary medicines, it was urged that requisite care and caution expected to be taken, were not taken and therefore, opp. parties were guilty of offence Under Section 429, IPC. One Deputy Director of Veterinary Services was examined amongst other witnesses, to further the case of the complainant. On consideration of evidence, learned SDJM refused to take cognisance, with a conclusion that no offence was made out. He accordingly, dismissed the complaint Under Section 203 of the Criminal Procedure Code, 1973 (in short the Code).

Before parting with the case, I may point out that there is a difference of opinion on the question whether a calf comes within the term cow. According to Madras High Court, a calf does not come within a bull, cow or ox. But the Calcutta High Court has held that bulls and cows in Section 429 include: Young ones of those animals.

The view of the Calcutta High Court appears to be reasonable. The section specifies the more valuable of domestic animals without any regard to age. 'Calf ' means ' young of the cow' according to Webster Universal Dictionary. Apart from that, the value of calf was more than Rs. 50/-
In this case it was held that mere negligence is not mischief. Negligence followed with intention to cause wrongful loss or damage will amount to mischief.

M/S Indian Oil Corporation vs. M/S Nepc India Ltd., & Ors on 20 July, 2006
The appellant (Indian Oil Corporation, for short 'IOC') entered into two contracts, one with the first respondent (NEPC India Ltd.) and the other with its sister company Skyline NEPC Limited ('Skyline' for short) agreeing to supply to them aviation turbine fuel and aviation lubricants (together referred to as "aircraft fuel").

According to the appellant, in respect of the aircraft fuel supplied under the said contracts, the first respondent became due in a sum of Rs.5,28,23,501.90 and Skyline became due in a sum of Rs.13,12,76,421.25 as on 29.4.1997.
As NEPC India failed to pay the first two instalments as per schedule, IOC stopped supply of aircraft fuel on 3.6.1997. However, subsequently, under a fresh agreement dated 20.9.1997, a revised payment schedule was agreed and IOC agreed to re-commence supply of aircraft fuel on 'cash and carry' basis. Even this arrangement came to an end as the instalments were not paid.

In view of the above discussion, we find that the High Court was not justified in quashing the complaints/criminal proceedings in entirety. The allegations in the complaint are sufficient to constitute offences under sections 415 and 425 of IPC. We accordingly allow these appeals in part and set aside the order of the High Court insofar it quashes the complaint under sections 415 and 425. As a consequence, the Judicial Magistrate, Coimbatore and the Judicial Magistrate, Alandur before whom the matters were pending, shall proceed with the matters in accordance with law in regard to the complaints filed by IOC in so far as offences under sections 415 and 425 of IPC. Parties to bear their respective costs.

In this case the defendant removed the engines of the aircraft hence diminishing its utility and rendering it useless. It was held that the damage caused satisfied all elements of mischief and thus the offense of mischief was constituted.

Conclusion
As society advances, new situations also emerge, and new issues are encountered. Similarly, though the offence of Mischief appears to be very exhaustive and inclusive taking up the whole fifteen sections of IPC. It tries to cover all the possible forms of mischief laying down different punishments for each depending on the gravity of the offence. But despite this, it still fails to lay down proper punishment for many other kinds of mischief that are very common.

Further, it does not lay down various situations that may also fall under the ambit of mischief hence leaving this solely to the discretion of Judges to identify and classify it as an act of mischief and to declare the punishment for the same. Due to this, there have been cases, where different levels of punishment can be witnessed in offences having similar nature & gravity.

Thus it is imperative to identify and implement appropriate punishment for the offence of mischief so that the offender can get due punishment and further, more deterrence can be ensured.

Written By:

1. Gurmeet Singh, Advocate, For M/S Gurmeet Singh & Associates, Advocates and Legal Consultants,
   Website: www.gurmeetsinghandassociates.com /.in, Email: [email protected], Ph No:+91 8750002000
2. Miss Srestha Nandy,
3. Miss Prabha Dabral.