# February r5, I96I Teeka <£, Ors v. State of Uttar Pradesh

- **Citation:** [1962] 1 S.C.R. 75
- **Court:** Supreme Court of India
- **Decided:** 1959-05-06
- **Case number:** Criminal Appeals Nos. 79 and 89 of 1959
- **Bench:** K. Subba Rao, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/february-r5-i96i-teeka-ors-v-state-of-uttar-pradesh-2082
- **Pages:** 12

## Headnote

Criminal Trial-Dishonest removal of property-Attachment
of livestock-Custody of Sapurdar-Forcible removal by ownerOwner, if acts dishonestly-Wrongful gain and wrongful lossIndian P~n~l Code, I86o (XLV of r86o), ss. 23, 24, I49· 424Code of Civil Procedure, r908 (V of r908), 0. zr, R, rr6 (Allahabad).
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
76
SUPREME COURT REPORTS
[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 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 judgmentdebtor 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.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. Agarwal and M. K. Ramamurthi, for the appellants.
G. C. Mathur and C. P. Lal for the respondent.
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1 S.C.R. SUPREME COURT REPORTS
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 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 follows: One Har Narain had obtained a decree from
the court of

## Text

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1 S.C.R. SUPREME COURT REPORTS
75
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 performed 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 allowing 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 entitled 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 ownerOwner, if acts dishonestly-Wrongful gain and wrongful lossIndian P~n~l Code, I86o (XLV of r86o), ss. 23, 24, I49· 424Code of Civil Procedure, r908 (V of r908), 0. zr, R, rr6 (Allahabad).
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
76
SUPREME COURT REPORTS
[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 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 judgmentdebtor 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.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. Agarwal and M. K. Ramamurthi, for the appellants.
G. C. Mathur and C. P. Lal for the respondent.
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1 S.C.R. SUPREME COURT REPORTS
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 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 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-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 appellant 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 ].
78
SUPREME COURT REPORTS
[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 SesPradesh
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 finding, 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 sentences to run concurrently. Hence the appellants
have preferred these two appeals against the J udgment 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 together. The material facts relevant to the said conten·
tions may be stated. Har Narain in execution of his
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1 S.C.R" SUPREME COURT REPORTS
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 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, 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 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
I96I
l'eeka & Ors.
v.
State of Uttar
Pradesh
Subba Rao J.
Tee/ea & Ors.
v.
State of Uttar
Pradcsli
Subba Rao ].
80
SUPREME COURT REPORTS
[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, 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 s. 424 of the
said Code reads:
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1 S.C.R. SUPREME COURT REPORTS
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 inten.
tion 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 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 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 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 himself 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.
82
SUPREME COURT REPORTS
[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
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(1) (1908) 25 T.L.R. 87.
(2) (1934) 35 Cr. L.J. 1307.
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(3) (1930) I.L.R. 52 All. 21~.
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l S.C.R. SUPREME COURT REPORTS
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 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 promulgation 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 possession 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 ].
84
SUPREME COURT REPORTS
[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 unlawful 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 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 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.
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1 S.C.R. SUPREME COURT REPORTS
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 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 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 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.
86
SUPREME COURT REPORTS
[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 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 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 recover 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 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.
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