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TMI Blog1961 (2) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by him was with him. A perusal of the cross-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft 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, (1934) 35 Cr. L.J. 1307, 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, (1930) I.L.R. 52 All 214 went to the extent of holding that the owner cutting and removing a portion of the crops under attachment in execution of a decree and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, (1926) I.L.R. 48 All. 368 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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handu 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 307read with section 149 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 blo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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