JUDGMENT Birendra Prasad Sinha, J. The petitioners were convicted under sections 427, 379 and 143, Indian Penal Code, by the trial Court. They were sentenced to undergo rigorous imprisonment for six months each under each of the sections 427 and 379 and to one month under section 143, Indian Penal Code. One Bishwanath Prasad, who is not a petitioner here, was also convicted alongwith the petitioners under sections 427/114 and 379/114, Indian Penal Code, and was awarded a sentence of six months under each count. In appeal, the conviction of the petitioners under section 379 of the Code was set aside, on the finding that "it could not be said for certain that the accused were involved in the theft or that they had such a motive." Their conviction under sections 427 and 143 was, however, maintained but the substantive sentence of imprisonment was altered into a fine of Rs. 300/- each under section 427 and Rs. 50/- under section 143 of the Code. In default of payment of fine, it was ordered that they would undergo rigorous imprisonment for six months each under section 427 and one month each under section 143. The learned Additional Sessions Judge who disposed of the appeal found that the accused had formed an unlawful assembly, "the common object of which at least was to commit mischief by show of force and threats had been held out to the complainant's man while the accused engaged themselves in dismantling the Dharmashala," 2. On Sunder Lal Jain, manager of Sammed Shikhar Nirman Samiti, Madhuban, Pir Tand, district Hazaribagh filed a petition of complaint before the Subdivisional Officer, Giridih, on the 19th April, 1967, stating, inter alia, that for lodging and boarding of the yatris a Dharmashala had been erected on the Parasnath Hill on behalf of the Digamber Jains, to which exception had been taken by Bishwanath Prasad and Shrichand Duggar on the 27th January, 1967, which led to initiation of proceedings under sections 144 and 107 Code of Criminal Procedure. These proceedings were finally dropped on the 31st March 1967. It was alleged that the petitioners and others pulled down the Dharmashala and caused damage for which certain station diary entries were made but the police did not take any action. These proceedings were finally dropped on the 31st March 1967. It was alleged that the petitioners and others pulled down the Dharmashala and caused damage for which certain station diary entries were made but the police did not take any action. The accused persons thereafter under the orders of Bishwanath Prasad and others dishonestly removed the building materials stacked at the Parasnath Hill belonging to the Digamber Jain Samiti, causing a loss of about Rs. 3000/-. When the men of the complainant protested, there was a threat of assault by the accused persons. The complainant having come to know of this filed the petition of complaint. 3. The petitioners pleaded not guilty to the charges. Their plea was also that the Digamber Jains had no properties in the Parasnath Hill and that there was no Dharamshala at all. 4. Several witnesses were examined on behalf of the prosecution. Both the Courts below found that there was a Dharamshala erected by the Digamber Jains and the same was demolished by the petitioners and others. 5. Shri Braj Kishore Prasad II, learned Counsel appearing on behalf of the petitioners, submitted that on the facts and in the circumstances of this case the petitioners could not be convicted for the offence of mischief. According to learned Counsel, both the Courts have failed to find out what was the intention of the petitioners, and if the accused persons entertained a plea that they were the owners of the Parasnath Hill and were in possession thereof and the complainant had no right to erect a Dharamshala, the Act, of demolishing the Dharmashala would not constitute the offence of mischief. 6. In this connection, it is relevant to state a few facts. The Parasnath Hill is a place of pilgrimage for the Jain community. The Jain community has two sects, viz., Swetambers and Digambers, who follow different modes of worship. The Parasnath Hill originally belonged to the Raja of Palganj. Certain rights in the Hill were acquired by Anandji Kalyanji Trust on behalf of the Swetambers, a long time back. The Hill vested in the State of Bihar with the coming in of the Land Reforms Act. The Parasnath Hill originally belonged to the Raja of Palganj. Certain rights in the Hill were acquired by Anandji Kalyanji Trust on behalf of the Swetambers, a long time back. The Hill vested in the State of Bihar with the coming in of the Land Reforms Act. The Swetambers entered into an agreement with the State of Bihar sometime in the year 1965 (vide Exhibit C) with a view to secure the due protection of all their rights including religious rites and ceremonies in regard to the individual properties. It was agreed that an area of half a mile round about the temple was to be excluded from the management of the Forest Department of the Government of Bihar. It appears that in February 1967 the Swetambers filed a title suit No. 10 of 1967 in the Court of Subordinate Judge, Hazaribagh, in a representative capacity against the Digambers for a declaration that the Digambers had no right to put up any building or structure of any kind, whether in or upon the Parasnath Hill. Prayer was also made for a permanent injunction restraining the Digambers from putting up any bulding or structure. Prior to the filing of the suit, proceedings under sections 144 and 107, Code of Criminal Procedure, had been drawn up against both the parties in respect of this property which was finally dropped on the 31st March, 1967, as stated above. The Digambers had started claiming that there was an agreement between them and the Government of Bihar on the 5th August, 1966, authorising them to put up any construction on any part of the Hill for any religious or charitable purpose and, if they do so, no objection could be raised by the Forest Department of the Government of Bihar. This agreement was not brought on the records of this case but from the judgment in appeal it appears that a copy of the agreement had been brought out before the police and the relevent portion of the agreement were quoted in the Police Sub-Inspector's report (Exhibit I). Be that it may, it is evident that the Digambers were claiming certain rights in the Hill. It was in this background that, according to the evidence of the complainant (P.W. 3), the Digambers started construction of the Dharamshala on the 4th of January, 1967, and completed it by the 26th of January, 1967. Be that it may, it is evident that the Digambers were claiming certain rights in the Hill. It was in this background that, according to the evidence of the complainant (P.W. 3), the Digambers started construction of the Dharamshala on the 4th of January, 1967, and completed it by the 26th of January, 1967. The proceedings under sections 144 and 107, Code of Criminal Procedure, were started on the 27th January, 1967. This means that both the parties were at logger head and were asserting their respective rights based upon some sort of agreement with the State of Bihar. 7. Upon these facts, Shri Braj Kishore Prasad submitted that even if it be held that the petitioners and others demolished the Dharmashala, it must be held that they had done so under a bonafide dispute regarding the rights and possession of the Parasnath Hill on which the Dharmashala was erected by the Digambers. In such a circumstance, learned Counsel submitted that the petitioners cannot be held to be guilty of an offence of mischief. On the other hand, Shri J.C. Sinha appearing for the complainant submitted that no such defence was put up by the petitioners in the Court below. Learned Counsel further submitted that such a plea could not be set up for the first time in this Court at this stage. I do not agree with this contention. The petitioners had taken an alternative defence. They had pleaded that they were not guilty. Their next plea was that there was no Dharmashala. It is wel1 settled that an accused is entitled to put up an alternative plea. Moreover, the petitioners are entitled to raise a question of law which arises upon the admitted facts in a case. 8. Shri Prasad did not challenge the findings of fact about there being a Dharamshala and its demolition by the petitioners and others, and rightly so. The question, therefore, for consideration is whether in view of the prolonged litigation between the parties and their respective claims regarding possession of the Parasnath Hill, the petitioners can still be held guilty for the offence of mischief for demolishing the Dharmashala. 9. The offence of mischief is defined in the Indian Penal Code in section 425, which runs as follows: "425. 9. The offence of mischief is defined in the Indian Penal Code in section 425, which runs as follows: "425. 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 a 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." 10. If the Dharmashala was demolished by the accused persons under the belief that it was constructed over the property belonging to them and in their possession, and that the Digambers had no right to construct the Dharmashala, the accused persons would be protected. My attention was drawn to the case of Pappu v. Damodaran, AIR 1968 Kerala 120 in which K.K. Mathew, J. (as he then was) observed as follows :- "A claim of right as to ownership or possession of property may stem from a mistake of law or a mistake of fact or of both. Ownership or possession in a given case is a mixed question of law and fact and if the mistake relates exclusively to facts it will negative mens rea. Will it make any difference if the mistake relates to the Law? Suppose the mistake as to ownership or possession results from a mistake of law, can a person plead that mistake and contend that although ignorance of law is no excuse yet, he was misled into thinking that the law was so and bonafide believed although unreasonably, in his title and possession and did the act? Suppose the mistake as to ownership or possession results from a mistake of law, can a person plead that mistake and contend that although ignorance of law is no excuse yet, he was misled into thinking that the law was so and bonafide believed although unreasonably, in his title and possession and did the act? I think, even if the mistake arose on account of a misunderstanding of the law that the property belonged to the accused or was in their possession and in that belief they went and destroyed the fence, it cannot be said that they would have the necessary intention to cause wrongful loss to the complainant, or the knowledge that that would be the result of their act." After discussing some cases, his Lordhsip further observed as follows : "A person who puts forward a claim of right founded on mistake or ignorance of civil law pertaining to the matter need not necessarily establish that the mistake or ignorance arose in spite of reasonable diligence. The only thing necessary is that the mistake must be one which leads the accused to claim that he has a right to Act, as he does. A mistake as to a criminal law only will not give rise to a claim of right, an error as to civil law may do so." 11. Learned counsel for the petitioners stated that the belief of the accused persons that they were owners of that portion of the Parasnath Hill and they were in possession thereof was genuine and honest in view of the agreement between the Swetambers and the State of Bihar (Exhibit C). From the facts in the present case, it will appear that the Swetamber sect disputed the rights of the Digamber sect to the Parasnath Hill and the former were under the belief that the portion of the Hill on which the Dharmashala was erected belonged to them. Upon the facts of the case, it cannot be said that this assertion was merely a pretence. A belief in the legal right was enough to negative the mens rea. A claim of right to demolish a house was held to be a defence to a charge of feloniously demolishing the house, notwithstanding the fact that the offence did not verbally require malice' vide Regina V. Langford, (1843) 74 E.R. 653 12. A belief in the legal right was enough to negative the mens rea. A claim of right to demolish a house was held to be a defence to a charge of feloniously demolishing the house, notwithstanding the fact that the offence did not verbally require malice' vide Regina V. Langford, (1843) 74 E.R. 653 12. The petitioners, as stated above, had also been convicted under section 379, Indian Penal Code, by the trial Court. The appeal Court acquitted them of the offence under section 379 on the finding that they had no motive to commit theft. In respect of the offence of mischief, the finding given by the appeal Court is half hearted as it has stated that the accused had formed an unlawful assembly the common object of which at least was to commit mischief. The appeal Court dose not seem to have considered this aspect of the matter as to whether in a case where the parties were in dispute regarding their rights and possession, the offence could still come within the mischief of section 427, Indian Penal Code. It was found that the accused persons had no motive of committing theft. For convicting them under section 427, it should have been found whether the accused persons had the intention to cause wrongful loss or wrongful damage. If a Criminal Court come to the conclusion that the accused person was attempting to assert a bona fide claim of right then he cannot be found guilty of the offence of mischief. A claim may be ill founded, but in such a situation the accused cannot be held to be guilty of mischief. In the case Phul Kumari V. Sheodahin Tiwary, AIR 1965 Pat. 507 it was observed by G.N. Prasad, J. that in the case of a criminal trespass the dominant intetion must be to intimidate, insult or annoy and if the dominant intention of wrongful entry was to take possession and intimidation, insult or annoyance was only the casual result, the offence of criminal trespass was not established. The question is what was the dominant intention of the petitioners in this case. Had they an intention to cause wrongful loss or damage to the property of the Dig1mbers and with this intention did they cause the destruction of a property? The chain of events, the various litigations between the parties lead me to a different conclusion. The question is what was the dominant intention of the petitioners in this case. Had they an intention to cause wrongful loss or damage to the property of the Dig1mbers and with this intention did they cause the destruction of a property? The chain of events, the various litigations between the parties lead me to a different conclusion. The Swetambers had filed a civil suit for declaration and permanent injunction. Both the parties had been proceeded against under sections 144 and 107, Code of Criminal Procedure. In this background, the dominant intention must be to assert their right and possession over the Hill and not just to cause wrongful loss to the complainant. 13. Learned Counsel for the opposite party referred to a decision of this Court in Kastur Chand V. Emperor, AIR 1934 Pat. 221 in which it was held by Macpherson, J., that a person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to the public or any person, even if an intention to cause that damage is not made out. This case does not go further. If it is found that the intention was to assert one's right and possession over property, the position w ill be surely different. The case of Kastur Chand (supra) is, therefore, of no help to the opposite party. He further relied upon a decision of this Court in Ram Prasad Singh V. State of Bihar, 1969 BLJR 472. It was held in that case that the intention could be gathered from the Act, done and if the structure belonged to and was in possession of a certain person, the demolition caused loss to him. That being so, by such demolition the offence of mischief was clearly made out. The facts in that case were different. It was found in that case that the structure belonged to and was in possession of one Thakur Dayal. In the present case the dispute was whether the Digambers could put up any structure over the Parasnath Hill and litigations were still going on in this respect. The intention has to be gathered not only from the Act, done but also from all the attending circumstances. In the present case the dispute was whether the Digambers could put up any structure over the Parasnath Hill and litigations were still going on in this respect. The intention has to be gathered not only from the Act, done but also from all the attending circumstances. In my opinion, where there is a bonafide claim of right as to ownership or possession of a property, whether reasonable or not, and the accused persons committed an Act, entertaining that belief, the Act, of demolition would not constitute the offence of mischief. In the present case the petitioners must be held to have entertained this belief. Since they entertained the belief that they were the owners of that portion of the Parasnath Hill and that the complainant or the Digambers sect of Jains had no right to put up any Dharmashala there, their Act, in pulling down the Dharmashala would not constitute the offence under section 427, Indian Penal Code. The dominant intention was not to came wrongful loss or damage to the structures put up by the Digambers, but the intention was to assert their right. Any loss or damage was only the casual result. 14. In the result, this application is allowed and the conviction and sentence passed against the petitioners under sections 427 and 143, Indian Penal Code, are set aside. Application allowed.