•. . .,t the offices of "Peshimam", "Khatib" and "Mujavar" and that they cannot carry out the duties of those offices even through deputies is one which was not raised before the High Court. The trial court has
found that the duties of those offices could be per- formed through deputies. The first appellate court did not express any opinion on that question and before the High Court, this question was not mooted.
We do not think that we would be justified in allow- ing the contesting defendants to argue this question in this appeal. In any event, if the income was being distributed amongst the four families, the plaintiffs
and defendant No. 2 claiming under Fakruddin would, by virtue of the provisions of the Shariat Act, be en- titled to receive that income. There is nothing on the record to suggest that the right to receive the income
is conditional upon the performance of the duties of the offices of "Peshimam", "Khatib" and "Mujavar". In that view of the case, this appeal fails and is dismissed with costs. Appeal dismissed.
TEEKA AND OTHERS ' v. STATE OF UTTAR PRADESH (K. SUBBA RAO and RAGHUBAR DAYAL, JJ.) 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 P~n~l Code, I86o (XLV of r86o), ss. 23, 24, I49· 424- Code of Civil Procedure, r908 (V of r908), 0. zr, R, rr6 (Allaha- bad).
In execution of a decree the Amin attached, inter a!ia, 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 z96z
C. llfohammed Yunus v. Syed Unissa 6' Others Shah J. February r5, I96I Teeka <£, Ors. v. State of Uttar Pradesh [1962] 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. I made a claim petition before the executing court and that court held that the two buffaloes belonged to him. The
appellants were convicted of offences under ss. r47, 452, 424, 325/149 and 323/r49 Indian Penal Code. They challenged their convictions on the grounds: (i) that the custody of the decree-holder over the buffaloes was illegal as neither the amin 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 had 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 2r, Rule 43 read with R. u6 (framed by the Allahabad High Court) empowered the amin to keep the attach- ed 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 posses- sion held it on behalf of the Court until the attachment was raised. So long as the attachment lasted or the claim of a per- son 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.LR. 87, Sarsar Singh v. Emperor, (1934) 35 Cr.LJ. 1307 and Emperor v. Gurdial, (r933) I.LR. 55 All. rr9, distinguished. Emperor v. Ghasi, (r930) I.LR. 52 All. 214, disapproved.
Dalganjan v. State, A.LR. r956 AIL 630, State v. Rama, (1956) I.L.R. 6 Raj. 772 and Emperor v. Kamla Pat, (1926) I.LR. 48 All. 368, applied. CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 79 and 89 of 1959. Appeals by special leave from the judgment and order dated May 6, 1959, of the Allahabad High Court in Criminal Appeal No. 1224 of 1957. A. S. R. Chari, R. K. Garg, D.P. Singh, S. C. Agar-
wal and M. K. Ramamurthi, for the appellants. G. C. Mathur and C. P. Lal for the respondent. "'I·. ,. i t.' :·.t 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 sen- tences imposed on them by the learned Sessions Judge
Meerut, under s. 147, s. 424, s. 452, s. 325, read with s. 149, and s. 323, read with s. 149, of the Indian Penal Code. Briefly stated the case of the prosecution is as fol- lows: 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 attach- ed, inter alia, three buffaloes and two cows, which were in the house of the judgment-debtor, as his pro- perty. 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 ani- mals, 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-holder 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 I, 2 and 3 took away
the two buffaloes followed by the other appellants. The defence version is that on June I, 1955, at about 7 a. m. the first appellant, Tika, was taking his two buffaloes for grazing when Har Narain and 11
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 appel- lant 2, Raja Ram, came there, he was also assaulted,
and that Tika and Raja Ram used their lathies in self-defence. z96r Teeka 6- Ofs, v. State oj UJtar Pradesh Subbu Rao ]. [1962] z96r The learned Sessions Judge, on a consideration of
1'eeka .., 0,,, the evidence, held that the cattle were attached on the v. evening of May 31, 1955, and that, after their seizure, State of uttar they were kept in the house of Har Narain. The Ses- Pradesh
sions Judge disbelieved the defence version that the accused gave the beating to Har Narain and others at Subba Rao J. 11 a. m. on June 1, 1955 in self.defence. On that find- ing, he convicted the accused as aforesaid. On appeal,
the learned Judges of the High Court accepted the 1 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 sen-
tences to run concurrently. Hence the appellants have preferred these two appeals against the J udg- ment 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 ss. 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 toge-
ther. The material facts relevant to the said conten· tions may be stated. Har Narain in execution of his i,. "' , •-:·~- 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 point- ed 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 effect- ed. 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 presum- ed 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 attach- ment list. 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 attach- ment had been validly made in strict compliance with all the requirements of law. If so, the next question is, whatis the effect of a
valid attachment of moveables? Order XXI, rule 43, of the Code of Civil Procedure describes the mode of" attachment of moveable properties other than agricul- tural 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
I96I l'eeka & Ors. v. State of Uttar Pradesh Subba Rao J. Tee/ea & Ors. v. State of Uttar Pradcsli Subba Rao ]. [1962] and shall be responsible for the due custody thereof. The relevant rule framed by the Allahabad High
Court is r. ll6, 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, appel- lant 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 s. 424 of the said Code reads: ·r t i …, _,,_,…._. i . -iy.' "Whoever dishonestly or fraudulently removes any property of himself or any other person, shall
be punished with imprisonment of either descrip- tion 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 inten. tion of causing wrongful gain to one person or wrong- ful 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 s. 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 attach- ment 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 wrong-
ful 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 attach- . ed. If the owner removes it by unlawful means, he
is certainly causing wrongful foss 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. Tetka ~ Ors. v. State oj Uttar Pradesh Teeka & Ors. v. State of Uttar
Pradesh Subba Rao j. [1962) 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 is the wilful 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 offences are different. In Sarsar Singh v. Emperor ('), 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 (') 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. 21~. 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 pro-
perty 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 he 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 cut and
removed the crop in spite of know ledge of the pro- mulgation of the order of attachment, the Allahabad High Court held in Dalganjan v. State(') 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 pos- session passed from the accused to the cust.odians, the cutting of the crop by the accused in March 1951 was
dishonest." In State v. Rama(') 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) l.L,R. 55 All. II9. (2) A.l.R. 1956 All. 630. (3) (1956) 1.L.R. 6 Raj. 772.
Teeka &. Ots, v. State of Uttar Pradesh Subba Rao J. 196I Teeka & 01s. v. State of Uttar Pradesh Subba Rao ]. [1962] 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 W\)re 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 pre- sent 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 of that property subsequent to that attachment would obviously be
guilty under 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 posi-
tion 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.
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 pro- perty by unlawful means he is causing w:ongful 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 distinc-
tion 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 men- tioned 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, there- fore, guilty of the offence and have been rightly con- victed 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 inju- ries on the persons of Om Prakash, 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 Teeka & Ors. v. State oj Uttar Pradesh Teeka &- Ors. v. State of Utlar Pradesh Subba Rao J.
[1962] 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 knew that ;:m 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 Pro- cedure, 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 irregula. rity 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 re- cover their cattle and gave lathi blows to tho inmates of the house causing thereby serious injm•ies to them.
Accused had ample opportunity to meet that case. Both the courts below accepted the evidence and con- victed 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.