iminal Appeals No
79 and 89 of 1959
Appeals by special leave from the judgment and order dated May 61959 of the Allhabad High Court in Criminal Appeal No 1224 of 1957
A section R Chari B K Gary DP Singh section 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 section 424 section 452 section 325 read with section 149 and is
323 read with section 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 PW 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 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 section 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 section 424 of the Indian Penal Code
3 The appellants also did not commit any offence under section 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 section 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 PW 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 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 section 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 section 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 section 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 section 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 section 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
vs 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 vs 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 section 24 IPC This decision does not help the appellants as in the present case the attachment was legal
Sen J in Emperor vs Ghasi 3 went to the extent of holding that the owner cutting and removing a portion of the 1 2 3 All 214
83 crops under attachment in execution of a decree and in the custody of a shehna did not constitute an offence under section 424 IPC 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 vs 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 section 424 IPC 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 section 424 or section 379 IPC 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 vs State 2 that the removal of the crop by the accused was dishonest and that the conviction of the accused under section 379 IPC 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 vs 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 All
119 2 AIR 1956 All
3 Raj
84 committing theft even though he happens to be the owner of the property
Though this was a case under s379 IPC the learned Judges considered the scope of the word dishonestly in section 378 which is also one of the ingredients of the offence under section 424 IPC 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 vs 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 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 section 424IPC
The next contention turns upon the provisions of section 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 section 424 of the Indian Penal Code
The appellants are therefore guilty of the offence and have been rightly convicted under section 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 IPC and within the cognizance of the court of Sessions
 Though section 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 section 325 of the Indian Penal Code was likely to be committed in prosecution of the common object of that assembly
Under section 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 section 325 read with section 149 IPC 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


Summary:
The appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners
The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration of the period of tenancy but possession was not delivered and the respondents were unable to obtain possession in view of the protection afforded to the tenants by the successive rent control Acts passed by the State
In the meantime the 814 appellant continued to pay every month amounts equal to the contractual rent and later the rent declared to be the statutory rent and the respondent accepted the same
The question arising for decision was whether the acceptance of the amounts by the respondents conferred upon the appellant the right of a tenant holding over within the meaning of section 116 of the Transfer of Property Act
Held that where a contractual tenancy to which the rent control legislation applied had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy
Kai Khushroo vs Bai Jerbai  followed
Acceptance by the landlord from the tenant of amounts equivalent to rent after the contractual tenancy had expired or amounts which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of section 116 of the Transfer of Property Act
Occupation of the appellant after the determination of tenancy was not in pursuance of any contract express or implied but was by virtue of protection granted by the successive statutes and such occupation was not required to be determined in the manner prescribed by section 106 of the Transfer of Property Act