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Ram Bahal Ahir and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All364
AppellantRam Bahal Ahir and ors.
RespondentEmperor
Excerpt:
.....all 711, for the proposition that a person who removes a crop which cannot be said to be duly attached because of a failure in carrying out the provisions of rule 44, order 21 cannot be punished for an offence under section 424,..........of rule 44, order 21, civil p.c. the learned magistrate went into the question whether the crops attached by the civil court had already been attached by the revenue court and found that this was not so. he examined the records and the evidence and came to the conclusion that the crops attached by the revenue court were quite different from those attached by the civil court. i do not intend in revision to go into this question of fact again. the learned magistrate has examined the matter apparently with great care and there is nothing to show that his decision was in any way perverse.2. the other question whether the attachment was properly made or not is one which must be considered. i quite agree that an alleged attachment which was not in accordance with the provisions of rule.....
Judgment:
ORDER

Allsop, J.

1. The learned Sessions Judge of Ghazipur has made a reference to this Court recommending that a sentence of fine passed on four persons, Ram Bahal, Sita, Jaddu and Ram Autar, should be set aside in revision. These four men were convicted by a Magistrate of an offence under Section 424, I.P.C., and were fined a sum of Rs. 15 each. The allegation was that their standing crops had been attached by the civil Court and that they had forcibly removed the crops. The learned Sessions Judge has made the reference upon the ground that the crops had already been attached by an order of the revenue Court and that they had been sold in pursuance of that attachment and upon the ground that the civil Court attachment was not valid owing to a failure on the part of the amin to observe the provisions of Rule 44, Order 21, Civil P.C. The learned Magistrate went into the question whether the crops attached by the civil Court had already been attached by the revenue Court and found that this was not so. He examined the records and the evidence and came to the conclusion that the crops attached by the revenue Court were quite different from those attached by the civil Court. I do not intend in revision to go into this question of fact again. The learned Magistrate has examined the matter apparently with great care and there is nothing to show that his decision was in any way perverse.

2. The other question whether the attachment was properly made or not is one which must be considered. I quite agree that an alleged attachment which was not in accordance with the provisions of Rule 44, Order 21, Civil P.C., would not operate to transfer possession of the property to the Court. In the present case it is said by the learned Judge that there is no evidence that the warrant of attachment was affixed on the land on which the crop was grown or on the threshing-floor or the place where the produce was stored. On the other hand I see that no question was put to the amin in cross-examination upon these points. The presumption of law, as I understand it, is that anything which is done by the officer of the Court is properly done until the contrary is shown. Omnia praesumuntur rite acta. In the absence of any attempt on the part of the accused in the Magistrate's Court to elicit from the amin that he had failed to carry out the provisions of the law it cannot be said that those provisions were not carried out and that the attachment was void. It seems to me that this in itself is sufficient to justify the rejection of this reference. The learned Judge has relied upon the case of Sarsar Singh v. Emperor 1934 All 711, for the proposition that a person who removes a crop which cannot be said to be duly attached because of a failure in carrying out the provisions of Rule 44, Order 21 cannot be punished for an offence under Section 424, I.P.C. I must say with greatest deference that I should hesitate to accept this proposition of law.

3. The question, it seems to me, under Section 424, I.P.C., is not whether the property passed into the possession of the Court but whether the accused person removed or concealed his own property with intent to defraud or defeat his creditors or partners or others. There is no doubt that a parson has a right to deal with his own property, but he has no right to deal with it in order to cause wrongful loss to others or wrongful gain to himself. A man who sells his property in order to prevent his creditors from proceeding lawfully against it would in my opinion be guilty of an offence under Section 424, I.P.C., and indeed it seems to me that that section was enacted in order to deal with offences of this kind. It is unnecessary for me to decide this question definitely and I therefore content myself with this expression of my doubts as to the correctness of the view held in the case to which I have referred. I consider on the facts found that there is no justification for interference with the conviction and sentences. The reference is rejected and the papers may be returned to the Court below.


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