Teeka And Others vs State of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 1961 AIR 803

Decision Date: 15 February 1961

Coram: Subbarao J., K. Dayal, Raghubar Dayal

In the matter titled Teeka and Others versus the State of Uttar Pradesh, the Supreme Court delivered its judgment on the fifteenth day of February, 1961. The opinion was authored by Justice Raghubar Dayal, and the bench also included Justice Subbarao K. The citation for this decision appears as 1961 AIR 803 and 1962 SCR (1) 75. The case concerned the criminal trial provisions relating to dishonest removal of property, the attachment of livestock, the custody of a sapurdar, and the consequences of a forcible taking by an owner acting dishonestly. The statutory framework mentioned comprised sections 23, 24, 149 and 424 of the Indian Penal Code, 1860, and Order 21, Rule 116 of the Code of Civil Procedure, 1908, as framed by the Allahabad High Court. The factual background recorded that, in execution of a decree, an Amin attached two buffaloes from the residence of the judgment debtor and placed them under the custody of a sapurdar. Because the sapurdar did not have suitable accommodation, he, with the permission of the decree‑holder, kept the buffaloes for one night in the decree‑holder’s enclosure. On the following morning, the appellants, equipped with seventy‑six lathis, entered the decree‑holder’s enclosure, began to untie the buffaloes, and, despite protests from the decree‑holder, his son and nephew, assaulted those who intervened, ultimately seizing the two buffaloes. Subsequently, the first appellant filed a claim petition before the executing court, which concluded that the buffaloes belonged to the appellant.

The appellants were later convicted under sections 147, 452, 424, 325 read with 149, and 323 read with 149 of the Indian Penal Code. They appealed the convictions on two principal grounds. First, they argued that the decree‑holder’s custody of the buffaloes was unlawful because a minor had no authority to place the buffaloes under the sapurdar’s care, and the sapurdar lacked power to entrust them to the decree‑holder. Second, they contended that they entered the decree‑holder’s enclosure solely to recover the buffaloes and therefore had not acted dishonestly. The Court held that the convictions were proper. It explained that the decree‑holder possessed the buffaloes only as a bailee of the sapurdar. Order 21, Rule 43 read with Rule 116 authorized the Amin to keep attached livestock in the custody of a sapurdar, who could, for convenience or necessity, place the animals with a third party as a bailee, the decree‑holder being one such possible bailee. Attachment effects a transfer of possession from the judgment debtor to the Court, and any person entrusted with such possession holds it on behalf of the Court until the attachment is lifted. While the attachment remains in force, or until a claim for the attached property is permitted, no other person is legally entitled to obtain possession. Consequently, any unlawful taking of the attached property results in “wrongful gain” to the taker and “wrongful loss” to the Court, a principle supported by the authorities Rex v. Thomas Knight (1908) 25 T.L.R. 87 and Sarsay Singh v. Emperor (1934) 35 Cr.L.J. 1307.

In the course of the proceedings, the Court referred to several earlier decisions for guidance. It noted that the cases of Emperor, (1934) 35 Cr.L.J. 1307 and Emperor v. Gurdial, (1933) I.L.R. 55 All. 119 were distinguished. The Court disapproved the authority of Emperor v. Ghasi, (1930) I.L.R. 52 All. 214, while it applied the rulings in 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.

The matter before the Court involved Criminal Appeals numbered 79 and 89 of 1959, filed by special leave against the judgment and order dated 6 May 1959 of the Allahabad High Court in Criminal Appeal No. 1224 of 1957. Counsel for the appellants comprised a team of lawyers, while the respondent was represented by counsel as well. The judgment was delivered on 15 February 1961 by Justice Subbarao.

These two appeals challenged the High Court’s decision to reject the appellants’ earlier appeal and to uphold the convictions and sentences imposed by the learned Sessions Judge of Meerut. The convictions were based on sections 147, 424, 452, 325 read with section 149, and section 323 read with section 149 of the Indian Penal Code.

The prosecution’s case, as summarized, began with the fact that a person named Har Narain obtained a decree from the Additional Munsif Court at Ghaziabad against a debtor named Sunehri Jogi for a monetary sum. To enforce that decree, the Munsif issued a warrant authorizing the attachment of the judgment‑debtor’s property. The officer, or amin, to whom the warrant was given attached, among other items, three buffaloes and two cows that were situated in the debtor’s house and were his property.

The amin placed the cattle under the custody of a sapurdar named Chhajju. Because Chhajju had no space in his own house to keep the animals, he, with the permission of the decree‑holder, stored the animals for the night in the decree‑holder’s enclosure. On the following morning, at about seven o’clock, nine of the appellants, each armed with a lathi, proceeded to the decree‑holder’s enclosure and began to untie two of the attached buffaloes. The decree‑holder, together with his son and nephew, protested the appellants’ actions. In response, the appellants struck the three occupants of the house with their lathis. When the fourth witness, identified as P.W. 4, intervened, the appellants also struck him with lathis. After this violence, appellants numbered one, two and three seized the two buffaloes and departed, followed by the remaining appellants.

The defence presented a different version of events. According to that version, on 1 June 1955, at approximately seven a.m., the first appellant, identified as Tika, was taking his two buffaloes to graze when Har Narain and eleven other persons, accompanied by the amin, forcibly seized the buffaloes. When Tika objected, the twelve persons allegedly assaulted him with lathis. When the second appellant, Raja Ram, arrived at the scene, he too was assaulted, and both Tika and Raja Ram purportedly used their lathis in self‑defence. After examining the evidence, the learned Sessions Judge concluded that the attachment of the cattle had taken place on the evening of 31 May 1955.

After the buffaloes were seized, they were kept in the house of Har Narain. The Sessions Judge found that the defence story—that the accused struck Har Narain and others at 11 a.m. on 1 June 1955 in self‑defence—was not credible, and on that basis he convicted the accused. On appeal, the High Court judges accepted the Sessions Judge’s findings, confirmed the convictions and the sentences, but ordered that the various sentences run concurrently. Consequently, the appellants filed two appeals against the High Court’s judgment. Counsel for the appellants presented four principal contentions. First, they argued that the attachment of the buffaloes was illegal; therefore, removing their own buffaloes from the decree‑holder’s possession could not constitute an offence under section 424 of the Indian Penal Code. Second, they contended that even assuming the attachment was valid, the amin had no authority to place the attached buffaloes in the custody of the sarpanch, and the sarpanch had no power to keep them in the custody of the decree‑holder; consequently, the decree‑holder’s possession was illegal and the appellants’ removal of the buffaloes did not fall within section 424. Third, they maintained that the appellants did not offend section 441 because they lacked any intention to commit an offence or to annoy the decree‑holder; their entry into the decree‑holder’s house was solely to recover their buffaloes from what they claimed was illegal custody. Fourth, they argued that the appellants were not guilty of offences under section 325 read with sections 147 and 149, since their common object was not to cause grievous hurt to the decree‑holder or others but merely to retrieve buffaloes that they asserted were being detained unlawfully. The first two contentions are to be considered together. The material facts relevant to these contentions are set out as follows. Har Narain, in executing his decree against Sunehri Jogi, attached the buffaloes that were situated in the house of the judgment‑debtor. The first appellant, Tika, subsequently filed a claim petition, and it is a matter of record that his claim petition was allowed. In that claim petition, the High Court observed that Tika did not contest the validity of the attachment; he merely asserted his title to the buffaloes. Likewise, his defence in the criminal trial did not claim that the incident occurred while the buffaloes were already in the decree‑holder’s possession; rather, he alleged that the incident took place before the attachment was effected. No argument was raised before the Sessions Judge on the ground that the attachment was illegal. For the first time, the High Court was asked to consider the illegality of the attachment, but the learned judges rejected that contention, not only

In this case, the Court noted that the High Court had rejected the contention on the ground that official acts are presumed correct and because the appellants had not challenged the legality of the attachment in the claim‑petition. The Court then considered the testimony of P.W. 1, the amin, who was examined before the Sessions Judge. He stated 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 affirmed that the warrant of attachment that he had received was in his possession. The Court observed that during the cross‑examination no question was put to the amin regarding any defect in the warrant of attachment or in the manner in which the attachment was effected. Accordingly, the Court held that, in the absence of any challenge, it must proceed on the assumption that the attachment was validly made and that all statutory requirements had been strictly complied with. Having accepted the validity of the attachment, the Court turned to the legal effect of a valid attachment of moveable property. Order XXI, rule 43 of the Code of Civil Procedure provides that attachment of moveable property other than agricultural produce shall be effected by actual seizure, and that the officer effecting the attachment shall keep the attached property either in his own custody or in the custody of one of his subordinates, for which he is responsible. The Allahabad High Court’s rule 116 further provides that live‑stock attached in execution of a decree shall ordinarily be left at the place of attachment either in the custody of the judgment‑debtor upon furnishing security, or in the custody of a land‑holder or other respectable person willing to undertake responsibility for its custody and to produce it when required by the court. That rule also authorises the attaching officer to keep the animals in the custody of a sapurdar or any other respectable person. The Court explained that attachment by actual seizure transfers possession from the judgment‑debtor to the court; the rule therefore deals only with the attaching officer’s liability to the court. Whether the amin keeps the buffaloes in his own custody or entrusts them to a sapurdar, the possession of the amin or the sapurdar is, in law, possession of the court, and, as long as the attachment is not successfully challenged, the court’s possession continues. The Court further considered whether it would make any difference if, for convenience or necessity, the sapurdar placed the animals with a responsible third party. In such a situation, the third party would be a bailee of the sapurdar. The Court held that it would not alter the legal position even if the bailee happened to be the decree‑holder, because the decree‑holder’s custody is not in his capacity as decree‑holder but merely as bailee of the sapurdar. Consequently, the Court concluded that the decree‑holder’s possession of the buffaloes was that of a bailee.

In the present matter the appellant was described as merely a bailee of the sapurdar. Nevertheless, it was argued that even if that description were correct, the appellant, being the owner of the buffaloes, could not be convicted under section 424 of the Indian Penal Code because, as the owner, he could not have acted dishonestly in attempting to recover his own animals from the custody of the court officer or the bailee. This contention required an examination of the text of section 424, which provides that “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 essential element for invoking this provision is that the removal be made dishonestly or fraudulently. Section 24 defines the term “dishonestly” as an act done “with the intention of causing wrongful gain to one person or wrongful loss to another person.” Section 23 then explains that “wrongful gain” means obtaining property by unlawful means to which the person is not legally entitled, and “wrongful loss” means the loss of property by unlawful means to which the person losing is legally entitled. The court considered whether an owner of property that is in the custody of the court could possess the requisite intention of causing wrongful gain or wrongful loss as contemplated in section 23. When an attachment is effected, legal possession of the attached property passes to the court. During the period of attachment, or until a claim by a person is allowed, that person has no legal entitlement to possession. If the owner were to take possession by unlawful means, he would be effecting a wrongful gain, while the court or its officers would suffer a wrongful loss. Applying this principle, the court observed that the appellant removed the buffaloes unlawfully from the possession of the decree‑holder, who acted as the bailee of the sapurdar. Consequently, the appellant caused a wrongful gain to himself and a wrongful loss to the court. Accordingly, the court concluded that the appellant’s removal of the buffaloes fell within the meaning of section 424, rendering him guilty of the offence. The judgment then proceeded to examine authorities cited by counsel that purported that an owner could never be liable under section 424 when removing property from a court officer, even under a legal attachment.

In addressing whether a person could be punished under section 424 of the Indian Penal Code for removing property that was already in the lawful possession of a court officer, the Court referred to the decision of the Court of Criminal Appeal in Rex v. Thomas Knight (1). In that case a prisoner who owned a flock of fowls took them away from the custody of the sheriff’s officer. The appellate court held that the prisoner was not guilty of larceny because larceny, as defined, required “the willful and wrongful taking away of the goods of another against his consent and with intent to deprive him permanently of his property”. The Court observed that larceny and theft differ fundamentally: larceny demands that the stolen item be the property of another, whereas theft requires that the item be in the possession of another. Consequently, the Court said it would be inappropriate to apply the principle laid down for larceny to an offence of theft or to a dishonest or fraudulent removal of property under the Indian Penal Code, since the essential ingredients of those offences are distinct. The Court then examined the decision in Sarsar Singh v. Emperor (2), where Justice Bajpai ruled that the mere fact that a judgment‑debtor, who was entitled to remove his crops that had not been validly attached, actually removed them did not, by itself, demonstrate dishonest intent. In that case the attachment had been made in violation of Order XXI, rule 44 of the Civil Procedure Code, rendering the attachment illegal and preventing the property from passing to the court. The court further held that under such circumstances it could not be presumed that the removal was dishonest within the meaning of section 24 of the Indian Penal Code. The present matter, however, involved a lawful attachment, and therefore the cited decision did not aid the appellants.

Justice Sen, in Emperor v. Ghasi (3), went further and held that the owner who cut and removed a portion of the crops that were under attachment for execution of a decree and were in the custody of a shehna did not commit an offence under section 424 of the Indian Penal Code. Citing the judgment at page 216, he observed that “if they were the owners of the crop and removed the same, their conduct was neither dishonest nor fraudulent”. The Court, however, noted that Justice Sen had overlooked the legal effect of the attachment, which placed the crops in the possession of the court. On this basis, the present Court concluded that the earlier decision was wrongly decided. A similar view was expressed in Emperor v. Gurdial, where Justice Pullan held that an owner who removed attached property from the custodian’s possession and placed it under his own control did not offend section 424 of the Indian Penal Code, although that case also involved an illegal attachment. The present analysis therefore recognized a line of judicial opinion that when the attachment is lawful, removal of the attached property by the owner or any third party from the court’s custodian constitutes an offence under section 424 or, as applicable, section 379 of the Indian Penal Code.

In the present matter, the Court explained that a person who is the owner of movables that have been lawfully attached can be prosecuted under section 424 or section 379 of the Indian Penal Code if he removes those movables from the possession of the court or of its authorized agent. The Court cited the decision of the Allahabad High Court in Dalganjan v. State, where revenue courts had attached certain plots of land and appointed custodians to look after the crops growing on those plots. The accused, aware of the attachment order, nevertheless removed the crop. The High Court held that such removal was dishonest and that the conviction of the accused under section 379 was proper, observing that possession had passed from the accused to the custodians and that the accused’s cutting of the crop in March 1951 constituted a dishonest act.

The Court further referred to the Rajasthan High Court decision in State v. Rama, in which the court held that a person who takes away property that has been attached, from the possession of the sapurdar to whom it was entrusted, without the sapurdar’s consent and with knowledge of the court’s attachment order, commits theft even if he is the owner of the property. Although the case involved prosecution under section 379, the judges examined the meaning of “dishonestly” in section 378, an element also required for an offence under section 424. Chief Justice Wanchoo observed that the loss suffered by Daulatram was caused by unlawful means. He emphasized that it could never be lawful for an owner to remove an attached animal from the person to whom it was entrusted without obtaining recourse from the court that issued the attachment order. The Court stated that these observations are equally applicable to the present case.

The judgment also mentioned a division bench of the Allahabad High Court in Emperor v. Kamla Pat, where the meaning of “dishonestly” was considered in the context of theft from a receiver’s possession. Justice Sulaiman noted that when property is attached under a civil court’s decree, legal possession passes to the court. Any individual who subsequently takes possession of that property, knowing that it has been attached, would be guilty under section 379 of the Indian Penal Code because his knowledge makes the act necessarily dishonest. The Court affirmed that these principles consistently demonstrate that once a court lawfully attaches property, ownership does not confer the right to retake the property without judicial authorization.

In the present case, the Court observed that once a court issues a legal attachment, the possession of the attached property automatically passes from the owner to the court or to the agent appointed by the court. The Court emphasized that the owner, even if he is the original owner of the animal or other property, is not authorised to retrieve the property by himself; instead he must institute a claim‑petition before the appropriate court to enforce his right. If the owner resorts to force to recover the property, the Court stated that such conduct is unlawful because it deprives the court, which is the lawful possessor, of the property and consequently inflicts wrongful loss upon the court. The Court further explained that while the attachment remains in force, the owner has no entitlement to the possession of the property, and any taking of the property by unlawful means results in an illegal gain to the taker. Applying this principle, the Court concluded that the appellants, by unlawfully removing the cattle from the possession of the decree‑holder who was merely a bailee of the sapurdar, caused a wrongful loss to the decree‑holder and thereby committed an offence punishable under section 424 of the Indian Penal Code.

The Court then turned to the contention raised under section 441 of the Indian Penal Code, which alleged that the appellants had not committed trespass with the intention to commit an offence, intimidate, insult, or annoy any person in possession of the property. The Court distinguished between intention and knowledge, noting that the defence argued the appellants entered the decree‑holder’s house without the specific intention described in that provision. Nonetheless, the Court found that the evidence clearly showed the appellants entered the house with the purpose of removing the attached cattle, an act that itself constituted an offence under section 424. Consequently, the Court held that the appellants were guilty of the offence and that their conviction under section 441 was proper. The final point raised by the defence concerned the alleged principal object of the accused, namely to recover their cattle, and the subsidiary object of using force if obstructed. The defence argued that, in the absence of a specific charge for the use of force, the accused should not be convicted for acts performed in furtherance of that subsidiary objective. The Court examined the charge, which read that the accused voluntarily caused injuries to several persons, and, had those injuries resulted in death, the accused would have been guilty of murder, thereby committing an offence under section 307 read with section 149 of the Indian Penal Code. Although section 149 was mentioned, the Court observed that the charge did not expressly state that the members of the assembly knew an offence under section 325 was likely to be committed in pursuance of their common object.

The Court observed that the members of the assembly must have known that an offence punishable under section three hundred twenty‑five of the Indian Penal Code could be committed while pursuing their common objective. The Court then referred to section five hundred thirty‑seven of the Code of Criminal Procedure. That provision states that a sentence passed by a competent court cannot be reversed or altered on appeal solely because of an error, omission, or irregularity in the charge. The Court added that such a reversal is permissible only when the error or omission has actually caused a failure of justice. Consequently, the Court framed the key issue as whether the defect in the charge had indeed resulted in a failure of justice. The Court explained that the presence of an irregularity in the charge does not automatically invalidate the conviction if the trial process remained fundamentally fair. It required a demonstration that the defect had deprived the accused of a substantial right or led to a misapprehension of the essential elements of the offence. Accordingly, the Court indicated that it would examine the material evidence and the conduct of the accused to determine whether any prejudice resulted from the alleged charge defect. If the Court found that the evidence against the accused was strong and untainted, it would conclude that no failure of justice had occurred.

The factual record showed that the accused were aware from the commencement of the case of the particular charges they had to meet. Prosecution witnesses testified that the accused armed themselves with wooden sticks, entered the decree‑holder’s premises, and struck the occupants with these sticks in an attempt to retrieve their cattle. The testimony further established that the blows inflicted by the accused resulted in serious injuries to the occupants of the house. The Court noted that the accused had ample opportunity to present a defence against these allegations and yet failed to do so. Both the trial court and the appellate court examined the evidence and found it sufficient to sustain convictions under section three hundred twenty‑five read with section one hundred forty‑nine of the Indian Penal Code. The record left no doubt that the accused understood that their common objective of recovering the cattle could likely cause grievous hurt to the occupants. Consequently, the Court concluded that the defect in the charge had not resulted in any miscarriage of justice. No substantial argument was raised before the Court that would necessitate interference with the judgments of the lower courts. Accordingly, the Court held that there was no basis for setting aside the convictions and that the appeals must be dismissed. The final order therefore dismissed both appeals, affirmed the lower courts’ findings, and upheld the convictions imposed on the accused for the offences charged.