IMPORTANT POINT
Negligence alone does not satisfy the criteria for mischief under IPC; intention and knowledge are essential elements for establishing an offense.

JUDGMENT :

RAVINDRA MAITHANI, J.

1. The challenge in this revision is made to the judgment and order dated 20.09.2011, passed in Criminal Revision No. 3 of 2011, State of Uttarakhand Vs. C.R. Goswami, by the court of District and Sessions Judge, Pauri Garhwal (“the second revision”). By it, an order dated 30.11.2010 of the Trial Court was set aside and the matter was remanded for hearing afresh, in accordance with law.

2. Heard learned counsel for the parties and perused the record.

3. Facts necessary to appreciate the controversy, briefly stated, are as follows:

On 29.12.2005, the forest officials found a dead elephant. It was noticed that its trunk had touched the live electric wire that is how the death took place. The Divisional Forest Officer filed a complaint under Section 55 of the Wild Life (Protection) Act, 1972 (“the Act”) against the revisionist, which is basis of Criminal Case No. 310 of 2009, in the court of Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal (“the case”).

In the case, on 01.05.2008, the court passed an order that there are sufficient grounds to frame charge under Section 51 of the Act against the revisionist. That order dated 01.05.2008 was challenged by the revisionist in Criminal Revision No. 11 of 2008, Chait Ram Goswami Vs. State of Uttarakhand and Others, in the court of District and Sessions Judge, Pauri Garhwal (“the first revision”). The first revision was allowed on 25.02.2010. The matter was remanded to the court below for deciding the matter afresh.

On 30.11.2010, the trial court, after hearing the parties, discharged the revisionist. That order was challenged in the second revision. In the second revision, the court observed as follows:

“11. The perigee in law to frame a charge against any person is to see and consider that whether all ingredients of any offence are completed or not, if completed then a change must be framed. The act of the respondent is not covered within the purview of the offence under special act; wild life (protection Act) 1972, but it come within the purview of mischief. Section 425 IPC defines the term “mischief” under the definition of the offence of mischief, their must be an intention or knowledge. If any person does any act with knowledge that he is likely to cause wrongful loss or wrongful damage to any person injuring any property, then if is said that he has committed an offence section 428 IPC also defines mischief by killing or maiming animal of the value of ten rupees. This Section provides as under:

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

12. To frame a charge U/s 428, the necessary ingredient must be (1) mischief by killing of any animal, (2) the value of the animal must be ten rupees or upwards. If the above two ingredients are fulfilled the offender should be punished u/s 428 of the Indian penal code. In the present case, the negligent act of the respondent comes within the purview of section 428 IPC, and a sufficient case is made out against the respondent to frame a charge under the said section. Thus in my opinion, the learned lower court has committed infirmity and illegality while passing the impugned order. The said order, therefore deserves to be set aside accordingly.”

4. After making these observations, the revision was allowed and the order dated 30.11.2010 passed in the case was set aside and the matter was remanded to the court below.

5. Learned counsel appearing for the revisionist would submit that no offence under Section 428 IPC is made out. He would submit that no mischief was committed by the revisionist. It is not even the prosecution case. According to the prosecution, it is the case of the negligence only. It is argued that due to rains, the stones and sands got accumulated below the electric line raising the