KEUNEMAiJ 3".—Nagaraja and Kanapathipillai.
1944Present: Keaneman J.
NAGARAJA et dl., Appellants, and CANAPATHIPII/LAI, Respondent.1,044-1,050—M.C. Kayts, 4,339.
Mischief—Reapingof paddycrop—Complainant’spossession offield—Penal
Code, s. 408.
Where the accused entered a held, which was in the possession of thecomplainant, and reaped the paddy which, but for the intervention ofthe Vidane, they would have carried away,—
Held, that the reaping of the crop amounted to mischief within theimeaning of section 408 of the Penal Code.
A PPBAL from a conviction by the Magistrate of Kayts.
N. Nadarajak, K.C. (with him H. W. Thambiah and Ragupathy), foraccused, appellants.
Li. A. Rajapakse, for complainant, respondent.
Cnr. adv. vult.
June 30, 1944. Keuneman J.—
The accused were charged with criminal trespass with intent tocommit mischief, under section 433 of the Penal Code, and with com-mitting mischief, under section 409. They were convicted on bothcounts and now appeal.
The evidence accepted by the Magistrate is that the complainantand his predecessors had been in possession of the field in question.The complainant had the field sown. The accused entered on to thefield and cut the paddy. A short time later the Kirama Vidaneintervened and took charge of the paddy.
There had been previous litigation as regards the land, which had gone infavour of the predecessors of the complainant, and the accused well knewthat the field was in the possession of the complainant. Two points wereArgued in appeal.
KEUNEMAN J.—Nagaraja and Kanapathipillai.
(.1) It was contended that an illegality existed in the proceedings."When the complainant came into court and asked for process, he led theevidence of three witnesses, vix., himself, the Kirama Vidane, and Amara-singham Ponnambalam. After process was issued the evidence of A.Ponnambalam was not read, nor was he tendered for cross-examination,and the complainant tendered the other two witnesses only. Further,a complaint made to the Police by A. Ponnambalam (C 2) was read inevidence. I think there has been an irregularity but not an illegality.The Magistrate has made it abundantly clear that he depended on theevidence of the complainant and the Kirama Vidane alone, and not onthat of A. Ponnambalam. The evidence of the two witnesses who weretendered for cross-examination amply justified the finding of the^ Magis-trate, whose opinion was not affected by the evidence of A. Ponnambalamor by his alleged statement. I am satisfied that there has been nomiscarriage of justice, and I see no reason to interfere with the findingof the Magistrate.
It is contended that the offence of mischief has not been made out,and that this affects the convictions on both counts. I have been referredto certain Indian cases.
In Mohamed Foyaz v. Khan Mahomed1 in the reference to the HighCourt, the following passage occurs: —
“ To cut a crop which is grown to be cut is not to destroy it or toaffect it in the manner defined above (i.e., under the section). Thetaking may cause wrongful loss to the grower, and if it' be dishonest aconviction may be had for the theft. But it cannot be mischief.”
This view appears to have been accepted by Kemp J. There were,however, other grounds on which the decision could rest. So also inSfoakur Mahomed v. Chunder Mohun Sha2 where these words occur inthe reference: ‘ ‘ Now as bamboo is a thing that is grown to be cut,the cutting and removing it does not amount to its destruction or otherinjury defined above ”—and this apparently was concurred in by Kemp J.Here again there was a general concurrence with regard to a number ofpoints raised.
This latter decision is open to doubt because, when the case wascited later to the same Bench, Glover J. said—“ We have no doubtthat where a party whose land (as he says) is given possession of toanother under a sale in execution by a civil court, and who at the timeof attachment made no objecton …. and who since has takenno legal steps to enforce his alleged right does, if he enters upon the land,possession of which has been formally made over to the execution pur-chaser, and cuts down bamboos growing up on it, commit the offenceof mischief ”—Sonai Sardar v. Bukhtar Sardar3.
In Ragupathi Aiyar v. Narayana Goundan i Curgenvem J. followedthe case in 21 W. R. 38, and said that the words of the section " carry
i 18 W. R. Cal. 10.* 21 W. R. 38.
3 25 W. R. 46. Cal.* 52 Mad. 151.
KEUNEMAJN' J.—Nagaraja and Kanapathipillai.
the implication that something should be done contrary to the naturaluse and serviceableness of such property The later case in 25 TP. R. 46was not cited.
In another case, the report of which I have been unable to obtain,—Miras ChowJcidar1, it was held that if crops were cut when immature,the offence may be committed.
It is interesting also to consider the case of Juggashwar Dass and otherv. Chatterjee2. Here the complainant had for purposes of removal placedcertain goods upon a cart, and accused came and unyoked the bullocksandHumed the goods off the cart on to the road. It was held that theoffence* of mischief had been committed. “ There was an unlawfulremoval of goods from the cart, and an unlawful change in their situation,with the knowledge that the change must amount to an nconvenienee,more or less serious, to the owner of the goods, and must to some extentdimmish the utility of the goods ..We think it is not necessary
that the damage required by this section should be of a destructivecharacter. All that is neeesary is, that there should be an invasionof right and diminution of the value of one’s property by that invasionof right, which must have been contemplated by the doer of it when he didit
The terms of section 408 are as follows;—
“ Whoever, with intent to cause, or knowing that he is likely tocause, wrongful loss or damage to the public or to any person, causesthe destruction of any property, or any such change in any propertyor in the situation thereof as destroys or diminishes its value or utilityor affects it injuriously, commits ‘ mischief ’.
In the present case it is clear that the accused were well aware ofthe fact that the complainant and his predecessors were in possessionof the field. The Magistrate has held that this attempt on the part ofthe accused was part of a policy to try to get into possession as soon as anew owner appeared on the scene. The accused acted dishonestly inmaking the attempt. The accused entered on to the field and reaped thepaddy, and but for the intervention of the Kir am a Vidane would probablyhave carried the crop away. The reaping of the crop, in my opinion,cause a change in the property—there was not only a physical changehut even a legal change. There has also been a change in the situationof the property. There must have been at least inconvenience causedto the complainant. No doubt the property was not destroyed, but Ithink it follows that there was a diminution in its value or utility to thecomplainant.
I prefer to follow the cases reported in 25 TV. R. 46 and in 12 Cal. 55(see also Gamimlla Sarkar v. Narayana3). In my opinion the offence ofmischief has been established.
The appeals are dismissed.
i 7 C .W. N. 178.
3 10 Oal. 408.
* 12 Gcd. 55.
NAGARAJA et al., Appellants, and CANAPATHIPILLAI, Respondent