M.C. Desai, J.
1. This is an appeal by nine men from a judgment of a Sessions Judge, Meerut, convicting them under Sections 147, 323, 325, 424 and 452, I. P. C. One Hamarain obtained a decree from the court of the Additional Munsif, Ghaziabad, against Sunehri Jogi for a sum of money and put it into execution. The Munsif issued a warrant of attachment of Sunehri's property and it was given to Jageshwar Dayal amin for execution before 31st July, 1955. The amin went to the house of Sunehri judgment-debtor on 31st May 1955, at about 6 p. m. and attached two houses three buffaloes and two cows on their being pointed out by the decree-holder's son Om Prakash as property belonging to the judgment-debtor.
The attached cattle were found inside the house of the judgment-debtor. The amin prepared a list of the attached property and handed over the attached cattle for custody to Chhajju, who executed a document acknowledging the entrustment of the attached cattle to him. He prepared a report about the attachment carried out by him and submitted it to the Additional Munsif. Chhajju, the sapurdar, did not have accommodation at his house for keeping the attached cattle and placed this difficulty before the decree-holder, who allowed him to keep them in his enclosure. Next day at 7 a. m. the nine appellants went to the enclosure of the decree-holder armed with lathis.
The decree-holder and his son Om Prakash and nephew Kabul were there. The appellants started untying two of the attached buffaloes. They untied one and were going to untie the other when the decree-holder etc. protested against their acts. There was an altercation between them and P. Ws. Risal, Srichand. Khazan, Jhandu etc. reached there. The appellants struck with lathis the decree-holder and his son and nephew. When Jhandu tried to intervene, they struck him also with lathis and ilme and Tika appellants took away the two buffaloes followed by the other appellants. Tika appellant left his lathi behind,
2. Om Prakash went to the police station, which is three miles away from the place of occurrence, and at 9-30 a. m. dictated the first information report against all the appellants. He mentioned in the report that in execution of thedecree against Sunehri two cows and three buffaloes had been attached by an amin on the previous day and entrusted to Chhajju, that Chhajju on ac-count of having no accommodation in his house had kept the attached cattle in the house of Om Prakash saying that he would take them away next day after arranging accommodation, that twoof the buffaloes had been left by Tika appellantwith Sunehri for grazing, that the buffaloes hadnot still given birth to any young one, that at7 a. m. the appellants went to the house of OmPrakash with lathis, entered into it and sayingthat their buffaloes had been attached untied 2 buffaloes an started to go away with them, that whenOm Prakash and his father and cousin protestedthey were beaten with lathis, that Jhandu alsowas beaten with lathis and that the fight was seenby Bhola, Risal, Srichand, Chhajju etc.
The condition of Harnarain decree-holder was stated in the report to be dangerous and the head moharrir at 9-30 a. m. wrote out a letter for his medical examination and sent it with P. C. Chandrapal. Om Prakash, Kabul and Jhandu were examined on 1-6-1955 between 5-30 and 6 P. M. Om Prakash had three injuries, Kabul seven and Jhandu seven; all the injuries were caused with a blunt weapon and were simple except for one injury of Jhandu. Harnarain was examined on 2-6-1955 at 4 a. m. and had as many as 14 injuries, two of which were grievous and one was dangerous.
They were all caused with a blunt weapon. Allthe injuries of the four persons appeared, in the opinion of the doctor, to have been caused on the morning of 1-6-1955. The police took up the investigation and took into possession blood-stained earth from the house of the decree-holder and the lathi left by Tika appellant.
3. The prosecution examined Harnarain, Om Prakash, the amin, Chhajju, Srichand, Risal, Kha-zan, Jhandu, Rawat Singh and Tika. The decree-holder, Om Prakash, the amin, Rawat Singh and Tika stated that the attachment took place on 31-5-1955 at about 6 p. m. Rawat Singh was awitness of the attachment and signed the list of the attached property and also the document executed by the sapurdar Chhajju, while Tika was the drum-beater who proclaimed the attachment by beat of drum.
These witnesses further deposed that the attached cattle were given in the custody of Chhajju. This is also the evidence of Chhajju himself. These witnesses, except the amin, deposed that Chhajju kept the attached cattle for the night in the house of the decree-holder; though the amin stated that he slept at the decree-holder's house at night he could not say whether the attached cattle were tethered in his house or not.There is nothing surprising in this because he might not have seen the attached cattle in the house of the decree-holder and might not have been informed that they were kept there. He also could not have been in a position to recognize the attached cattle. Evidence about the occurrence that took place on 1-6-1955 has been given by the decree-holder and his son and Jhandu, Chhajju and Srichand. They deposed that all of the appellants entered into the enclosure in which the attached cattle were tied and untied the two buffaloes, that on protests by the decree-holder and his son and nephew they struck them with lathis, and that the decree-holder also used their lathis in self-defence.
Evidence about the beating has also been given by Risal and Khazan, who reached the enclosure when the fight was in progress. These eye-witnesses further stated that Jhandu intervened and was struck and that Tika and ilme appellants took away the two buffaloes saying that they were theirs. There is also the statement of Om Prakash that Tika appellant left his lathi behind.
4-5. The appellants pleaded not guilty. The two Kabuls, Bhaura, Srinarain, Pheru and Raghubir pleaded alibi while Tika, Raja Ram and ilme admitted that they were involved in some fight. (After considering the evidence his Lordship proceeded).
6. The learned Sessions Judge accepted the prosecution version and rejected the defence version and I am satisfied that he has taken, the correct view of the evidence. There is no jurisdiction (justification?) for not accepting the prosecution evidence that the attachment took place on 31-5-1955 and that three buffaloes along with other property were attached from Sunehri's possession. The deposition of Om Prakash is fully supported by the first information report which he made without any suspicious delay. The amin, Tika, Chhajju and Rawat Singh are independent witnesses and their evidence does not show that they have concealed the facts. (His Lordship further considered the evidence and continued).
7. The warrant of attachment was not produced but it was not essential to produce it in court. An official act can be presumed to have been done correctly and it can be presumed that the property was attached by the amin in accordance with the law. It was not against the law to attach the property at 6 p. m. or 6-30 p. m. because on 31-5-1955 the sun set after 6.30 p. m. It is immaterial if the rules do not provide for the handing over of the attached property to a sapurdar; even if the amin acted against the rules in entrusting the attached buffaloes to Chhajju, the appellants did not become entitled to seize them from the enclosure of Harnarain where Chhajju had kept them. No illegality in carrying out the attachment was pleaded by Tika Ram or Sunehri in their objections against the attachment.
8. When the appellants went to the house of Harnarain with the common object of taking away the attached buffaloes by use of force and used force in prosecution of the, common object, they committed the offence of Section 147. Their buffaloes could certainly not be attached, but once they were attached they could not form an assembly of more than four persons with the object of enforcing their right of releasing them from the attachment without committing the offence of Section 143 I. P. C. Their common object also was to beat if there was any resistance to their taking away the buffaloes.
This beating was punishable under Section 323 because it was not in self-defence. Once the theft of buffaloes by the amin etc. had been completed and the thieves had made good their escape with the stolen property, Tika etc. had no right of self defence to beat the thieves. So if they intended to go to their house next morning to beat them they intended to commit an offence and the assembly became unlawful. The appellants also intended to commit trespass into the enclosure of Harnarain with the object of beating Harnarain etc. if they resisted their taking away the buffaloes.
9. It was vehemently argued that no offence of Section 424 I. P. C. was committed because the buffaloes belonged to them and their act of removing them from the illegal attachment could not be said to be dishonest or fraudulent. It is not a correct proposition of the law that a person who removes property belonging to him but unjustifiably attached, does not act dishonestly or fraudulently. The right of an owner of an article does not remain the same after the article has been attached by a person having authority to attach it.
The attachment keeps in abeyance his right of ownership and so long as the attachment lasts he cannot exercise the right of ownership over the article. If the attachment is illegal, his remedy is to approach the court, which ordered the attachment, but he cannot take away the property from the possession of the attaching officer or his delegate. During the attachment only the court ordering the attachment can exercise authority over it. Whether the attachment is justified or not the property comes under the control of the court and to the extent that it is under the control of the court, the pre-existing right of the owner becomes restricted.
If the property is attached by a person having no authority to attach it, the matter would be different because then the attachment would be without jurisdiction and would amount to nothing but theft. Here the attachment was by an amin duly authorised to attach the buffaloes and the simple fact that the buffaloes belonged not to the judgment-debtor, only whose property could be attached, but to a third person did not convert the amin's act of attachment into theft. The right of an owner is not suspended by theft of the property if it is by attachment of it.
After the attachment it is only a court that can decide whether the attachment was justified or not; nobody is entitled to decide himself that the attachment was unjustified and use his own resources for getting the property back in his possession. If he did not recapture the property immediately after it was attached, he could only proceed in accordance with the law; that is the common law, vide the article by Albert S. Thayer on 'Possession and Ownership' in 23 L. Q. R. 314 at p. 315. Wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled.
Wrongful loss is loss by unlawful means of property to which the person losing is legally entitled. Dishonest intention consists of the intention of causing wrongful gain to one person Or wrongful loss to another person; see Sections 23 and 24 I. P. C. When a property of a person other than the judgment-debtor is attached in execution of a decree so long as the attachment subsists he cannot be said to be legally entitled to the property and if he takes it away he certainly causes wrongful gain to himself.
During the attachment the court, or the attaching officer or the sapurdar can be said to be the person legally entitled to the property and if they are deprived of it in a manner not contemplated by the law it can be said that wrongful loss is caused to them. Whether the person is legally entitled to the property or not is to be determined with reference to the circumstances existing at the time when the gain or loss is caused. It is irrelevant to take into consideration the previous circumstances, such as the previous ownership of the property. During an attachment the fact that the attachment subsists must be taken into account in determining which person is legally entitled to the property.
Since the attachment brings into abeyance the right of ownership of the property, it should not be taken into account in determining who is legally entitled to the property. The very meaning of 'attachment' is that during its subsistence the court attaching the property is the person legally entitled to it and not anybody else even if he be the Owner. When the appellants without getting the attachment set aside took possession of the buffaloes by using unlawful means (committing trespass upon the property of Harnarain, forming an unlawful assembly and causing injuries to Harnarain etc.), they acted dishonestly and committed the offence of Section 424. Any other interpretation of Sections 23, 24 and 424 I. P. C., would result in chaos and disorder not contemplated by the legislature.
The law does not contemplate a person to take the law in his own hands except to a limited extent as provided in the provisions relating to the private right of defence in the Penal Code. There is no provision permitting a man to remove properly from the possession of a court or its officer on the ground that it belonged to him and not to the judgment-debtor and was unjustifiably attached. It is idle to argue that a person taking the law in his own hands will do so at his risk and will be liable to be punished if it is found that he had no right to the property.
The legislature did not contemplate that a person should do such an act even at his own risk. It is true that if a person takes away his property from the possession of an attaching officer by use of force, he will be convicted for the use of the force even though it is held that he did not act dishonestly and did not commit the offence of Section 424 I. P. C., but there is little provocation required to convert a non-violent taking into disorder and there is such a great risk of the exercise of the right of taking away the property resulting in disorder that the legislature could not have conferred the right of even peacefully taking the property.
Sections 183, 184, 186, 332, 333, 353 I. P. C. etc., would be rendered meaningless if a person were given the right to take away his property from me possession of an attaching officer on the ground that it was not liable to attachment. Sections 183, 184, etc., prohibit obstruction to a public servant's discharge of his public functions regardless of whether the discharge of the public functions by the public servant infringes rightly or wrongly the person's rights of property. The appellants could not offer any resistance to the attachment of their buffaloes from the possession of Sunehri by the amin without committing the offence of Section 184 and it would have been useless to enact Section 183 if after the attachment they could take away the attached property from the possession of the attaching officer without committing any offence.
If they had a right to take away the property after the attachment, there would be no sense in prohibiting them from resisting the attachment at all. In Hyde v. Graham (1.863) 1 H. and C. 593, Chief Baron Pollock recognised the danger of con, stant breaches of the peace resulting from a person's obtaining redress by his own acts and observed at p. 598 that
'the law of England appears to me, both inspirit and on principle, to prevent persons from. redressing their grievances by their own act.'
Holloway J. in .Madras High Court Proceedings 8-1-1873 No. 59, (1873) 7 Mad. H. C. R. App 35-relying upon this case said:
'The natural tendency of the law of all civilised States is to restrict within constantly narrowing, limits the right of self-help and it is certain that no other principle can be safely applied to a country abounding in sects inflamed with the bitterness engendered by small theological or ceremonial differences.'
Quoting this observation Mitra and Caspersz JJ., in Jairam Mahton v. Emperor, ILR 35 Cal 103, said:
'The right of self-help, when it causes, or is likely to cause, damage to the person or property of another person must be restricted, and recourse to public authorities must be insisted on.'
This statement of the law was approved by Rampini and Sharfuddin JJ. in Kabiruddin v. Emperor, ILR 35 Cal 368 and by Manohar Lall and Chat-terjee JJ. in Satnarain Das v. Emperor, ILR 17 Pat. 607: (AIR 1938 Pat 518). Macpherson J. pointed out in Jasuram v. Emperor, AIR 1924 Pat. 143 that the right of private defence of property does not cover a case of taking or retaking possession by means of criminal force or show of criminal force. It is true that these cases only decide that use of force or violence is not justified and do not deal with the question whether an owner of a property cannot remove it in order to prevent its being attached unjustifiably, but the principle that if there is time to have recourse to the protection of the public authorities they must be approached applies and the owner must not take the law in hid own hands. It may be said that at the moment when the property is sought to be attached the owner has no time to have recourse to the protection of the public authorities, but the same cannot be said after the property has been attached. After the attach-ment is completed the owner cannot say that he has no time to have recourse to the protection of the authorities and that his right of private defence entitles him to recapture it peacefully. The language of Sections 183, 184 etc. shows that he has no right to offer any resistance, whether accompanied by the use of force or violence or not, to the attachment of the property by the lawful authority of any public servant and his right after the attachment has been completed must be less than his right at the moment of the attachment.
10. The appellants relied upon Ghasi v. Emperor : AIR1930All329 in which Sen J. held that the removal of attached property from the possession of the sapurdar by its owner, who was not the judgment-debtor, did not amount to an offence under Section 424 I. P. G. The learned Judge simply posed the question whether the removal of the property by its owner was dishonest and fraudulent and immediately supplied the answer, 'If they were the owners.... and removed the same, their conduct was neither dishonest nor fraudulent.' There is no discussion of the law and no authorities are cited. The learned Judge has not considered the effect of the attachment lawfully carried oufi upon the rights of the owner and the effect of the provisions of Sections 183, 184 etc. With great respect to the learned Judge, I cannot agree that no offence under Section 424 I. P. C. was committed in that case, in Sarsar Singh v. Emperor : AIR1934All711 , in which the removal of an attached property by the owner was held not to constitute the offence of Section 424, the facts were that the legal procedure prescribed for attachment was not followed by the officer and so the attachment was held to be invalid. Bajpai J. observed:
'If the provisions of the law were not complied with, the attachment would be illegal and the property would not pass from, the judgment-debtor to the court.'
There is a distinction between want of jurisdiction or irregular exercise of jurisdiction and erroneous judgment in the exercise of jurisdiction. It may be erroneous judgment of a court to order attachment of a property though it does not really belong to the judgment-debtor, but the attachment does not become invalid. The attachment may be set aside on a proper objection being filed by the owner, but so long as it is not set aside it binds him as much as if he had been the judgment-debtor. When no irregularity is committed by the attaching officer and' he attaches the property as ordered by the court, which had jurisdiction to order the attachment, the attachment is fully effective and the right of ownership of the property remains in abeyance and the court acquires dominion over it. Once the owner's right comes into abeyance and the court acquires dominion over the property only the setting aside of the attachment will revive the owner's right and entitle him to exercise it. The case of Sarsar Singh is, therefore, distinguishable from the present case in which there was no want of jurisdiction either on the part of the court ordering attachment or on the part of the amin carrying it out and the amirt did not go against any law while carrying it out. Once the decree-holder pointed out the buffaloes as the judgment-debtor's property, and the amin was authorised by the court to attach the property pointed out to him as the judgment-debtor's property by or on behalf of the decree-holder, the attachment was valid though liable to be set aside on proof that the buffaloes were in the judgment-debtor's possession on behalf of somebody else, and the amin while-carrying out the attachment was acting in lawful' discharge of his functions.
There is another distinction between the facts of the present case and the facts in the case of Sarsar Singh and it is that Sarsar Singh did not use unlawful means for removing the property whereas the appellants used unlawful means. Bajpai J. was of the opinion that a dishonest intention may be presumed only if an unlawful act is done or if a lawful act is done by unlawful means. If this is a correct statement of the law the appellants could be presumed to have acted dishonestly because their going in a body to enforce their supposed right of taking the buffaloes, trespassing upon the enclosure of the decree-holder and using force were unlawful means.
Ram Ghulam Singh v. Emperor : AIR1925All401 , cited by the appellants, is irrelevant; it simply dealt with the question what amounts to obstructing a public servant and not with the question whether the removal of property by the owner from the pofession of the attaching office is dishonest or fraudulent or not. Muhammad Sbafi v. Emperor, AIR 1914 All 344, is equally irrelevant, In Bhiku Gir v. Emperor : AIR1932All449 , a police officer, who was assaulted when he in violation of the law prevented the owner of a house from entering into it and being present at the time of its search, was held not to be acting in the discharge of his duties; again the question raised there was different from the question raised in the present case. The amin could not be said to be not acting in the discharge of his duties merely because the property pointed out to him as the judgment-debtor's property really did not belong to him. The warrant of attachment in Chelli Latchanna v. Emperor, 43 Crl, LJ 795: (AIR 1942 Pat 480); was on the face of it illegal because it was not dated and did not bear the name of the person to whom, it was addressed and it was because of this illegality in the warrant itself that the attachment was held to be void.
If the warrant itself did not authorise the offices to attach the property he could not be said to have had jurisdiction to attach it. If it was not known when the warrant was issued and whether its date had expired or not, then also the officer could be said to be not acting within his jurisdiction in carrying out the attachment. As pointed out above if the officer has no jurisdiction under the warrant itself to carry out the attachment or if the warrant is is sued by a court having no jurisdiction to issue it, the attachment is void and not simply voidable. A void attachment is as good as no attachment and if there is no attachment, there is no abeyance of the owner's right in respect of it and he cannot be said to act dishonestly or fraudulently when he removes it.
11. I hold that the appellants were guilty under Section 147, 424 and other offences of which they have been convicted. Considering that Hamarain's left parietal bone was fractured, that he had four injuries on the head and at least four injuries on the face and that the sentences for the various offenecs are being made concurrent, I cannot say that the sen-tence of two years' imprisonment for the offence of Section 325/149 is so excessive as to amount to an abuse of the discretion vesting in the trial court.
12. The appellants' convictions and sentencesare maintained but the sentences shall run concurrently and their appeal is dismissed. They shallsurrender themselves to undergo their sentences.