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PETITIONER: TEEKA AND OTHERS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 15/02/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1961 AIR  803            1962 SCR  (1)  75

ACT: Criminal  Trial-Dishonest removal of property-Attachment  of livestock-Custody  of  Sapurdar-Forcible removal  by  owner- Owner,if  acts dishonestly-Wrongful gain and  wrongful  loss Indian Penal Code, 1860 (XLV of 1860), ss. 23, 24, 149, 424- Code  of  Civil Procedure,1908 (V of 1908), O.  21,  R.  116 (Allahabad).

HEADNOTE: In execution of a decree the Amin attached, inter alia,  two buffaloes  from  the  house  of  the  judgment  debtor   and entrusted  them  to  the  custody of  a  sapurdar.   As  the sapurdar  had no accommodation in his house for keeping  the buffaloes he kept them for the night in the enclosure of the decree-holder  with his permission.  Early next morning  the appellants armed with 76 lathies,  went  to the enclosure of  the  decree-holder  and began  to untie the two. buffaloes; the  decree-holder,  his son and nephew protested whereupon they and another  person, who  tried to intervene, were beaten by the  appellant  with lathies  and the two buffaloes were taken away.   Afterwards appellant  No. 1 made a claim petition before the  executing court and that court held that the two buffaloes belonged to him.   The appellants were convicted of offenses  under  ss. 147, 452, 424, 325/149 and 323/149 Indian Penal Code.   They challenged  their convictions on the grounds: (i)  that  the custody of the decree-bolder over the buffaloes was  illegal as neither the a minor had any authority to give them in the custody  of the sapurdar  nor had the sapurdar any power  to keep them in the custody of the decree-holder, (ii) that the appellants  bad entered the enclosure of  the  decree-holder only   to  recover  their  buffaloes  and  had   not   acted dishonestly. Held,  that  the  appellants were  rightly  convicted.   The decree-holder’s possession of the buffaloes was as a  bailee of the sapurdar.  Order 21, Rule 43 read with R. 116 (framed by the Allahabad High Court) empowered the amin to keep  the attached  buffaloes  in  the custody  of  a  sapurdar.   The sapurdar could, for convenience or necessity, keep them with a third person as bailee and such third person could be  the decree-holder   also.   Attachment  involved  a  change   of

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possession  from  the  judgment debtor  to  the  Court;  and whoever was entrusted with the possession held it on  behalf of  the Court until the attachment was raised.  So  long  as the attachment lasted or the claim of a person for the thing attached  was  not  allowed, that  person  was  not  legally entitled  to  get possession of the thing attached.   If  he unlawfully took possession of that thing he caused "wrongful gain" to himself and "wrongful loss to the Court. Rex  v. Thomas Knight, (1908) 25 T.L.R. 87, Sarsay Singh  v. Emperor,  (1934)  35 Cr.L.J. 1307 and  Emperor  v.  Gurdial, (1933) I.L.R. 55 All. 119 distinguished. Emperor v. Ghasi, (1930) I.L.R. 52 All. 214, disapproved. Dalganjan  v.  State, A.I.R. 1956 All. 630, State  v.  Rama, (1956)  I.L.R.  6 Raj 772 and Emperor v. Kamla  Pat,  (1926) I.L.R. 48 All. 368, applied.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals No,%.  79 and 89 of 1959. Appeals  by special leave from the judgment and order  dated May  6,1959, of the Allhabad High Court in  Criminal  Appeal No. 1224 of 1957. A.   S. R. Chari, B. K. Gary, D.P. Singh, S. C. Agarvial and M. K. Ramamurthi, for the appellants. G.   C. Mathur and C. P. Lal for the respondent. 77 1961.  February 15.  The judgment of the Court was delivered by SUBBA  RAO,  J.-These two appeals are directed  against  the judgment  of  the  High Court  of  Judicature  at  Allahabad dismissing  the  appeal  preferred  by  the  appellants  and maintaining the convictions and sentences imposed on them by the learned Sessions Judge Meerut, under a. 147, s. 424,  s. 452,  s.  325, read with s. 149, and is. 323, read  with  s. 149, of the Indian Penal Code. Briefly  stated the case of the prosecution is  as  follows: One  Har Narain had obtained a decree from the court of  the Additional Munsif, Ghaziabad, against one Sunehri Jogi for a sum of money.  In execution of that decree the Munsif issued a  warrant  for  the  attachment  of  the  judgment-debtor’s property.   The amin to whom the said warrant was  entrusted attached,  inter alia, three buffaloes and two  cows,  which were  in the house of the judgment-debtor, as his  property. The amin kept the cattle in the custody of one Chhajju,  the sapurdar.  As the said sapurdar had no accommodation in  his house for keeping the animals, he kept them for the night in the enclosure of the decree-holder with his permission.  The next  day at about 7 a. m., the nine appellants, armed  with lathies,  went  to the enclosure of  the  decree-bolder  and began  to untie two of the attached buffaloes.  The  decree- holder, his son and his nephew protested against the acts of the  appellants  whereupon the appellants struck  the  three inmates  of  the  house  with  lathies,  and  when  P.W.   4 intervened, they struck him also with lathies.   Thereafter, appellants  1. 2 and 3 took away the two buffaloes  followed by the other appellants. The  defence version is that on June 1, 1955, at about 7  a. m.  the first appellant, Tika, was taking his two  buffaloes for  grazing  when Har Narain and 1 1 others came  with  the amin  and  forcibly snatched the said buffaloes,  that  when Tika  objected  to it, those 12 persons assaulted  him  with lathies, that when appellant 2, Raja Ram, came there, he was also  assaulted,  and  that Tika and  Raja  Ram  used  their

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lathies in self defence. 78 The  learned  Sessions  Judge, on  a  consideration  of  the evidence, held that the cattle were attached on the  evening of  May 31, 1955, and that, after their seizure,  they  were kept  in  the  house  of Har  Narain.   The  Sessions  Judge disbelieved  the defence version that the accused  gave  the beating to Har Narain and others at 11 a. m. on June 1, 1955 in self defence.  On that finding, he convicted the  accused as  aforesaid.   On appeal, the learned Judges of  the  High Court  accepted  the  finding  arrived  at  by  the  learned Sessions  Judge  and  confirmed  the  convictions  and   the sentences  passed  by him on the accused, but  directed  the various sentences to run concurrently.  Hence the appellants have preferred these two appeals against the Judgment of the High Court. Learned  counsel  for the appellants raised  before  us  the following  contentions: (1) The attachment of the  buffaloes was  illegal and, therefore, the appellants in  taking  away their own buffaloes from the possession of the decree-holder did not commit any offence under s. 424 of the Indian  Penal Code. (2) Even if the attachment was valid, neither the amin had  any  authority to keep the attached  buffaloes  in  the custody  of the sapurdar, nor the sapurdar had any power  to keep them in the custody of the decree-holder, and therefore the   decree-holder’s   possession  was  illegal   and   the appellants  in taking away the buffaloes did not commit  any offence  within  the meaning of s. 424 of the  Indian  Penal Code.  (3)  The appellants also did not commit  any  offence under  s.  441  of the Indian Penal Code,  as  they  had  no intention  to  commit an offence or cause annoyance  to  the decree-holder,  but  they entered the house of  the  decree- holder only to recover their buffaloes from illegal custody. (4)  The appellants did not commit an offence under s.  325, read  with  as. 147 and 149, of the Indian  Penal  Code,  as their  common object was not to cause grievous hurt  to  the decree-holder  and  others, but was only  to  recover  their buffaloes illegally detained by the decree-holder. The  first two contentions may be considered together.   The material  facts  relevant  to the said  contentions  may  be stated.  Har Narain in execution of his 79 decree against Sunehri Jogi attached the buffaloes that were in  the  house of the judgment-debtor.  Tika,  appellant  1, filed a claim petition it is common case that subsequent  to the  incident his claim-petition was allowed. in the  claim- petition,  the  High  Court pointed out that  Tika  did  not question the validity of the attachment but only set up  his title to the buffaloes.  Indeed, his defence in the criminal case  also  was  not that the  incident  happened  when  the attached  buffaloes were in the house of  the  decree-holder but  that the incident took place before the attachment  was effected.  Before the Sessions Judge no point was  taken  on the  basis  of the illegality of the  attachment.   For  the first  time in the High Court a point was sought to be  made on  the ground of the illegality of the attachment, but  the learned  Judges  rejected  the contention not  only  on  the ground  that  official acts could be presumed to  have  been done  correctly but also for the reason that the  appellants did  not  question  the legality of the  attachment  in  the claim-petition.  That apart, P.W. 1, the amin, was  examined before the Sessions Judge.  He deposed that he had  attached the  heads of cattle from the house of the  judgment-debtor, Sunehri Jogi, and that he had prepared the attachment  list. He  further deposed that the warrant of attachment  received

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by him was with him.  A perusal of the cross-examination  of this  witness discloses that no question was put to  him  in regard to any defects either in the warrant of attachment or in  the  manner  of  effecting  the  attachment.   In  these circumstances,  we must proceed on the assumption  that  the attachment had been validly made in strict compliance with all the requirements of law. If  so, the next question is, what is the effect of a  valid attachment of moveables?  Order XXI, rule 43, of the Code of Civil Procedure describes the mode of attachment of  movable properties other than agricultural produce in the possession of the judgment-debtor.  It says that the attachment of such properties  shall  be made by the actual  seizure,  and  the attaching  officer shall keep the attached property  in  his own custody or in the custody of one of his subordinates 80 and  shall  be responsible for the due custody  thereof  The relevant rule framed by the Allahabad High Court is r.  116, which reads,               "Live-stock   which  has  been   attached   in               execution of a decree shall ordinarily be left               at  the  place where the  attachment  is  made               either  in custody of the  judgment-debtor  on               his  furnishing security, or in that  Of  some               land-holder   or  other   respectable   person               willing to undertake the responsibility of its               custody and to produce it when required by the               court." The  aforesaid rule also empowers the attaching  officer  to keep  the animals attached in the custody of a  sapurdar  or any other respectable person.  Attachment by actual  seizure involves a change of possession from the judgment-debtor  to the court; and the rule deals only with the liability of the attaching officer to the court.  Whether the amin keeps  the buffaloes in his custody or entrusts them to a sapurdar, the possession  of  the  amin  or the sapurdar  is  in  law  the possession  of the court and, so long as the  attachment  is not  raised,  the  possession  of  the  court  continues  to subsist.  Would it make any difference in the legal position if the sapurdar, for convenience or out of necessity,  keeps the said animals with a responsible third party?  In law the said  third party would be a bailee of the sapurdar.   Would it make any difference in law when the bailee happens to  be the  decree-holder?   Obviously it cannot, for  the  decree- holder’s custody is not in his capacity as decree-holder but only  as  the bailee of the sapurdar.  We,  therefore,  hold that the decree-holder’s possession of the buffaloes; in the present case was only as a bailee of the sapurdar. But  it is said that even on that assumption,  appellant  1, being  the  owner  of the buffaloes, was not  guilty  of  an offence  under s. 424 of the Indian Penal Code, as he  could not  have  acted  dishonestly  in  trying  to  retrieve  his buffaloes  as their owner from the custody, of  the  court’s officer  or  his  bailee.   This  argument  turns  upon  the provisions of s. 424 of the Indian Penal Code.  The material part of a. 424 of the said Code reads: 81               "Whoever  dishonestly or fraudulently  removes               any  property of himself or any other  person,               shall be punished with imprisonment of  either               description for a term which may extend to two               years, or with fine, or with both". The necessary condition for the application of this  section is  that  the removal should have been made  dishonestly  or fraudulently.   Under  s.  24  of  the  Indian  Penal  Code,

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"Whoever  does  anything  with  the  intention  of   causing wrongful  gain  to one person or wrongful  loss  to  another person  is said to do that thing ,dishonestly’." Section  23 defines  "wrongful  gain" and  "wrongful  loss".   "Wrongful gain"  is defined as gain by unlawful means of  property  to which  the  person  gaining is  not  legally  entitled;  and "wrongful loss" is the loss by unlawful means of property to which  the  person losing is legally  entitled.   Would  the owner  of a thing in court’s custody have the  intention  of causing wrongful gain or wrongful loss within the meaning of a. 23 of the Indian Penal Code?  When an attachment is made, the legal possession of a thing attached vests in the court. So long as the attachment lasts or the claim of a person for the  thing  attached  is not allowed,  that  person  is  not legally  entitled to get possession of the  thing  attached. If he unlawfully takes possession of that property to  which he is not entitled he would be making a wrongful gain within the  meaning of that section.  So too, till  the  attachment lasts the court or it officers are legally entitled to be in possession of the thing attached. If the owner removes it by unlawful means, he is certainly causing wrongful loss to the court  or  its  officers, as the case  may  be,  within  the meaning  of the words "wrongful loss", In the  present  case when the owner of the buffaloes removed them-unlawfully from the  possession  of  the decree-holder, the  bailee  of  the sapurdar,  he definitely caused wrongful gain to  him.  self and wrongful loss to the court.  In this view, we must  hold that  appellant 1 dishonestly removed the  buffaloes  within the  meaning  of  s.  424 of  the  Indian  Penal  Code  and, therefore, he was guilty under that ,section. 82 Now we shall proceed to consider some of the decisions cited at  the  Bar  in support of the  contention  that  under  no circumstances  the  owner of a thing would be guilty  of  an offence under s. 424 of the Indian Penal Code, if he removed it from an officer of a court, even if he was in  possession of it under a legal attachment. Reliance  is  placed  upon  the decision  of  the  Court  of Criminal  Appeal  in  Rex.  v. Thomas  Knight  (1)  where  a prisoner,  the owner of the fowls,’ took them away from  the possession of the Sheriff’s officer, the court held that the prisoner  was  not  guilty of  larceny.   "Larceny  if;  the willful  and  wrongful taking away of the goods  of  another against   his  consent  and  with  intent  to  deprive   him permanently   of   his  property".   There   are   essential differences  between  the  concept of larceny  and  that  of theft;  one  of  them being that under  larceny  the  stolen property must be the property of someone whereas under theft it  must  be  in the possession of  someone.   It  would  be inappropriate  to apply the decision relating to larceny  to an  offence  constituting theft or dishonest  or  fraudulent removal  of  property under the Indian Penal Code,  for  the ingredients of the offenses are different.  In Sarsar  Singh v.  Emperor (2), Bajpai, J., held that "the mere  fact  that the  judgment-debtor,  who is entitled to remove  his  crops which  are not validly attached, has removed them  does  not prove   that  he  has  done  so  dishonestly".   There   the attachment was made in derogation of the provisions of Order XXI, rule 44, Civil Procedure Code; and the Court held  that the  attachment  was illegal and,  therefore,  the  property would  not pass from the judgment-debtor to the  court.   It further  held that under such circumstances the court  could not  presume  that the act of removal was  done  dishonestly within  the meaning of s. 24, I.P.C. This decision does  not help  the appellants, as in the present case the  attachment

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was legal.  Sen, J., in Emperor v. Ghasi (3) went to the extent of holding that  the owner cutting and removing a portion of the (1) (1908) 25 T.L.R. 87. (2) (1934) 35 Cr.  L.J. 1307. (3) (1930) I.L.R. 52 All 214. 83 crops  under attachment in execution of a decree and in  the custody  of a shehna did not constitute an offence under  s. 424, I.P.C. The learned Judge observed at p. 216,               "If  they  were  the owners of  the  crop  and               removed  the same, their conduct  was  neither               dishonest nor fraudulent". The   learned  Judge  ignored  the  circumstance  that   the attachment of the crops had the legal effect of putting them in the possession of the court.  For the reason given by  us earlier, we must hold that the case was wrongly decided.  In Emperor  v. Gurdial (1) Pullan, J., held that the  owner  by removing  the attached property from the possession  of  the custodian and taking it into his own use, did not commit  an offence  under  s.  424, I.P.C. But in that  case  also  the attachment was illegal. But  there  is a current of judicial  opinion  holding  that where  there was a legal attachment, a third party  claiming to be the owner of the moveables attached would be guilty of an  offence under s. 424 or s. 379, I.P.C., as the case  may be, if lie removed them from the possession of the court  or its agent. Where a revenue court had attached certain plots and certain persons were appointed as custodians of the crop standing on the  plots and accused out and removed the crop in spite  of knowledge  of the promulgation of the order  of  attachment, the Allahabad High Court held in Dalganjan v. State (2) that the  removal  of the crop by the accused was  dishonest  and that the conviction of the accused under s. 379, I.P.C.  was proper.   The  learned Judges said,  "Since  the  possession passed  from the accused to the custodians, the  cutting  of the  crop  by the accused in March 1951 was  dishonest."  In State v. Rama (3) the Rajasthan High Court held that where a person takes away the attached property from the  possession of  the  sapurdar,  to whom it  is  entrusted,  without  his consent,  and with the knowledge that the property has  been attached by the order of a court, he will be guilty of (1) (1933) I.L.R. 55 All. 119., (2) A.I.R. 1956 All. 630. (3) (1956) I.L.R. 6 Raj. 772. 84 committing theft, even though he happens to be the owner  of the  property.  Though this was a case under s.379,  I.P.C., the learned Judges considered the scope of   the        word "dishonestly"   in  s.  378,  which  is  also  one  of   the ingredients of the offence under s. 424, I.P.C. Wanchoo,  C. J. observed at p. 775 thus:               "There  is no doubt that loss of property  was               caused to Daulatram inasmuch as he was made to               lose the animals.  There is also no doubt that               Daulatram  was  legally entitled to  keep  the               animals   in  his  possession  as  they   were               entrusted  to  him.   The  only  question   is               whether  this loss was caused to Daulatram  by               unlawful  means.   It is to our  mind  obvious               that  the loss in this case was caused by  un-               lawful  means because it can never  be  lawful               for  a person, even if he is the owner  of  an               animal, to take it away after attachment  from

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             the  person  to whom it is  entrusted  without               recourse  to the court under whose  order  the               attachment has been made." These  observations  apply with equal force to  the  present case.   A  division  bench of the Allahabad  High  Court  in Emperor v. Kamla Pat (1) considered the meaning of the  word "dishonestly" in the context of a theft of property from the possession of a receiver.  Sulaiman, J., observed at p.  372 thus:               "Therefore  when a property has been  attached               under  an order of a civil court in  execution               of a decree, possession has legally passed  to                             the court.  Any person who takes possession  o f               that  property subsequent to  that  attachment               would  obviously be guilty tinder section  379               of the Indian Penal Code, if he knew that  the               property  had been attached and was  therefore               necessarily acting dishonestly." We  need  not multiply decisions, as the legal  position  is clear, and it may be stated as follows: Where a property has been legally attached by a court, the possession of the same passes  from the owner to the court or its agent.   In  that situation,  the owner of the said property cannot  take  the law  into  his own hands, but can file a  claim-petition  to enforce  his right.  If he resorts to force to get back  his property, (1)  (1926) I.L.R. 48 All. 368. 85 he acts unlawfully and by taking the property from the legal possession of the court or its agent, he is causing wrongful loss to the court.  As long as the attachment is subsisting, he is not entitled to the possession of the property, and by taking  that  property  by  unlawful  means  he  is  causing wrongful  gain to himself.  We are, therefore, of  the  view that  the  appellants in unlawfully taking away  the  cattle from  the  possession of the decree-holder, who  is  only  a bailee of the sapurdar, have caused wrongful loss to him and therefore they are guilty of an offence under s.  424,I.P.C. The  next contention turns upon the provisions of s. 441  of the Indian Penal Code.  The argument is that the  appellants did not commit trespass with intention to commit an  offence or  intimidate, insult or annoy any person in possession  of such property.  A distinction is made between intention  and knowledge.  It is said that the appellants did not  trespass into the house of the decree-holder with any such  intention as  mentioned in that section.  But in this case we have  no doubt,  on  the evidence, that the  appellants  entered  the house  of  the  decree-holder  with  intent  to  remove  the attached cattle constituting an offence under s. 424 of  the Indian Penal Code.  The appellants are, therefore, guilty of the offence and have been rightly convicted under s. 441  of the Indian Penal Code. The  last  contention is that the principal  object  of  the accused  was  to  get  back  their  cattle  which  had  been illegally  attached and that their subsidiary object was  to use  force,  if  obstructed, and that in the  absence  of  a specific  charge in respect of the use of force the  accused should  not  have  been  convicted of  what  took  place  in furtherance  of the subsidiary object.  The relevant  charge reads thus:               "That  you, on or about the same day at  about               the  same  time and place  voluntarily  caused               such  injuries on the persons of  Om  Prskash,               Har  Narain,  Jhandu and Qabul,  that  if  the

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             injuries  would have caused the death  of  Har               Narain,  you would have been guilty of  murder               and thereby committed an offence under section               307 read with section 149               86               I.P.C. and within the cognizance of the  court               of Sessions." Though  s. 149 of the Indian Penal Code is mentioned in  the charge, it is not expressly stated therein that. the members of  the  assembly know that an offence under s. 325  of  the Indian Penal Code was likely to be committed in  prosecution of the common object of that assembly.  Under s. 537 of  the Code of Criminal Procedure, no sentence passed by a court of competent  jurisdiction  shall  be reversed  or  altered  on appeal  or  revision on account of any  error,  omission  or irregularity  in the charge, unless such error, omission  or irregularity  has in fact occasioned a failure  of  justice. The question, therefore, is whether the aforesaid defect ’in the charge has in fact occasioned a failure of justice.  The accused  knew from the beginning the case they had to  meet. The  prosecution adduced evidence to prove that the  accused armed  themselves with lathies and entered the  premises  of the  decree-holder  to recover their cattle and  gave  lathi blows  to the inmates of the house causing  thereby  serious injuries  to them.  Accused had- ample opportunity  to  meet that case.  Both the courts below accepted the evidence  and convicted the accused under s. 325, read with s. 149, I.P.C. The  evidence leaves no room to doubt that the  accused  had knowledge that grievous hurt was likely to be caused to  the inmates of the decree-holder’s house in prosecution of their common  object, namely, to recover their cattle.  We are  of the opinion that there is no failure of justice in this case and that no case has been made out for interference. No  other  point was raised before us.  In the  result,  the appeals fail and are dismissed. Appeals dismissed. 87