Teeka & Ors Vs. State of Uttar
Pradesh  INSC 50 (15 February 1961)
CITATION: 1961 AIR 803 1962 SCR (1) 75
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).
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
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 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,
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.
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
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
Briefly stated the case of the prosecution is
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 lathies in
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
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
He further deposed that the warrant of
attachment received 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
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
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, "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 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 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
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 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.