Point of Law: Word mischief used in Section 3(1) of the PDPP Act is not defined in the PDPP Act, but it is stated that meaning of mischief in Section 425 IPC is applicable.

ORDER :

Section 95 of the Indian Penal Code says that ‘nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.’ This is a welcoming section in the Indian Penal Code, which has to be in the mind by every police officer while investigating a case. The facts of this case would show that, at least a minority of the investigating officers fail to remember Section 95 of the Indian Penal Code which has been in existence from 1860!

2. This criminal miscellaneous case is filed to quash Annexure 2 final report which is now pending as S.C No. 148/2021 before the Additional District Court-I, Thrissur. The case was charge sheeted by the Kunnamkulam police, alleging offences punishable under Section 153 of the Indian Penal Code and Section 3(1) of the Prevention of Damages to the Public Property Act (‘the PDPP Act’ for short).

3. The prosecution case is that on 10.10.2015 at 10:00 PM, the accused in this case in connection with election to Local Self Government Institutions illegally affixed a poster on the electric post with gum and thereby committed mischief to the public property. Hence it is alleged that the accused committed the offence. It is also stated that the above act would affect identification of the post of the consumers of electricity by the Electricity Board and would prevent the Board from resumption of power supply in time. It is also stated that to remove the poster from the electric post, the Board had to spend Rs.63/-and hence it is alleged that the accused committed the offence under Section 3(1) of the PDPP Act and Section 153 of the Indian Penal Code. Subsequently the offence under Section 140 of the Electricity Act, 2003 was also added and the case was refiled as C.P No.49/2021 by the Judicial First Class Magistrate Court, Kunnamkulam and the matter was committed to the Sessions court and now the case is pending before the Additional District Court-I, Thrissur as S.C No.148/2021.

4. The petitioner submits that even if the entire allegations in the final report are accepted in toto, the offence under Section 153 IPC, 3(1) of PDPP Act and Section 140 of the Electricity Act, 2003 are not attracted.

5. Heard counsel for the petitioner and the learned Public Prosecutor.

6. A perusal of the final report would show that the offences alleged are under Section 153 of IPC, 3(1) of PDPP Act and Section 140 of the Electricity Act. First I will consider whether Section 153 IPC is made out in the facts and circumstances of the case. It will be better to extract Section 153 of the IPC.

“Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

7. The essential ingredient to constitute the offence under Section 153 IPC are as follows:-

1) the accused did an illegal act.

2) the act was done malignantly or wantonly.

3) the act was done with the intention to provoke or knowing that it will provoke a person to cause the offence of rioting.

8. This court in Sanjeev S. vs. State of Kerala [2023(3) KHC 324], considered the scope of Section 153 IPC. It would be better to extract Paragraphs 7, 8 and 10 of the above judgment.

“7. The word malignantly and wantonly are not used synonymously in the Section. The word malignantly is used for the purpose of expressing a higher degree of intensity or ill-will. While the word wantonly means causing harm or damage deliberately. The