G.K. Misra, J.
1. The petitioner has been convicted under Section 379, I.P.C. and sentenced to pay a fine of Rs. 100/-, in default to undergo R. I. for one month.
2. The prosecution cage may be stated in brief. Petitioner is admittedly the bhag tenant in respect of the disputed land There was dispute between the landlords and the petitioner regarding yield of the land. An application was filed on 4.12.63 by landlord Kunjabehari Barik before the 0. T. B. Collector (hereinafter referred to as the Collector) for appraisement of the crop under Section 79 of the Orisaa Tenancy Act (herein after re. ferrel to as the Act). On 5.11.63 the Collector passed an order of attachment of the standing crop. The Revenue Inspector, in pursuance of the order, attached the standing crop on 10.11.63 and kept the property in the sima (custody) of Bhramar Dehuri (P. W. 1). On 18.11.63 the petitioner forcibly cut and removed the paddy despite protest from P. W. 1. The petitioner, in his defence, admitted the cutting and removal of the paddy. He contended that there was a compromise between him and the landlords and he, without any dishonest intention, removed the paddy and paid landlords' share thereafter. The Courts below concurrently found that there was an attachment of the standing crop and that the forcible removal of the crop by the petitioner brought him within the mischief of S..379, I.P.C. They held that the compromise was subsequent to the act of removal.
3. The undisputed facts are that the standing crop was attached in a proceeding for appraise-ment under 3. 79 of the Act and that the petitioner cut and removed the standing crop on 18.11-63. The learned Sessions Judge recorded his finding thus:
Therefore it is proved that there was an attachment by the O. T.R. Collector and moreover it was not for the criminal court to consider as to how far the attachment wag justified the fact remaining that the crops of the land were attached by the O. T. R. Collector.
4. In revision Mr. Patnaik does not assail the finding of fact. The sole contention is that the Collector had no power to attach the standing crop and that there was no prohibitory order under Section 79 of the Act on the petitioner for removal of the crop, and as such the acts of cutting and removal by the petitioner do not constitute theft. The contention requires careful examination.
5. Admittedly till the date of attachment the petitioner was in possession of the disputed land. As a bhag tenant he grew the paddy, did all agricultural operations and was in possession of the disputed land and the standing crop till the date of attachment. On attachment of the stand. ing crop. the produce shall be deemed to have passed into possession of the Court (see Order 21, Rule 44, Civil P. C.). If the attachment was legal, the petitioner was clearly guilty of offence under Section 879, I.P.C. irrespective of the question whether there was a prohibitory order under Section 79 of the Act.
Under Explns. 1 and 2 of Section 378, I. P.C. a thing attached to the earth becomes capable of the subject of theft as soon as it is severed from the earth. A moving effect by the same act which effects severance may be a theft.
6. The aforesaid conclusion necessitates an examination of the question whether the attachment was legal or not, and whether, even if it is illegal, it can be construed as a prohibitory order under 3. 79. The learned Sessions Judge was wrong in his observation that it was not for the criminal Court to consider as to how for the attachment was justified. If the attachment itself is illegal, the action of the criminal Court can be ignored by the petitioner who was continuing in possession till the date of attachment and cut the crop soon after and though in fact the standing crop was kept in the sima of P. W. 1, the petitioner would not be deprived of his actual physical control and possession of the standing crop.
7. Under Section 79, the Collector may on the application of either party make an order appointing an officer to appraise or divide the crops. Where a Collector makes such an order, he may under Sub-section (3) by order prohibit removal of the produce until the appraisement or division has been effected. Thus Section 79 does not authorise attachment of the land on the standing crop.
Clearly the attachment was not merely illegal but was without jurisdiction. By such illegal attachment, Order 21, Rule 44, Civil P. C. will have no operation and the produce shall not be deemed to have passed into the possession of the Court. The order that the standing crop was kept in the zima did not deprive the petitioner of his actual physical control and possession in reaped of the standing crop on the land when the attachment was without jurisdiction. For appreciating the distinction between an attachment not fully justifiable in law and an attachment without jurisdiction, a reference may be made to : AIR1960Pat232 (Bamsaran v. State of Bihar). There the facts were that the cattle of the accused were attached under a distress warrant which was illegal and without jurisdiction. It was held that rescuing the cattle from the custody of the attaching officer did not amount to an offence as his act was wholly unjustifiable in law and without jurisdiction.
8. The only other question for consideration is whether, even if the attachment was illegal, it would constitute a prohibitory Order under Section 79 (3) of the Act. Ex facie the attachment cannot be construed as a prohibitory order under Section 79 (3). By implication it might mean that the petitioner was prohibited from removing the standing crop which was kept in the zima of P. W. 1. There was no obligation on the part of the petitioner to construe an illegal attachment order to be one under Section 79(3). Once he was of opinion that there was no valid attachment, he Gould legitimately carry the conviction that the zima given to P. W. 1 was illegal and that he was not deprived of his control and possession of the standing crop. In the absence of a prohibitory order it is open to a person in the position of an accused to think that he is not restrained from removing the crop. Prosecution must bring home the charge beyond reasonable doubt. If two different views are possible, the accused is entitled to benefit of doubt. When the Collector acted under Section 79(3), he should have clearly issued an order in terms thereof.
9. It has been contended on behalf of the State on the strength of Ex. 3 that the petitioner admitted that he had knowledge of the factum of attachment and he under mistaken impression removed the crop. Ex. 3 was not put to the petitioner in his examination under Section 343, Criminal P. C. What explanation the petitioner would have offered, it is difficult to say. Ex. 3 therefore must be ignored and cannot be utilised as an incriminating circumstance against the petitioner. Even if Ex. 3 is admissible, it does not preclude the petitioner to take the stand that the attachment was without jurisdiction and that his action, which at one time he misconceived to be unjustifiable was justified in law. An admission can be proved to be wrong and is not conclusive unless it amounts to estoppel.
10. On the aforesaid discussion I have no hesitation to hold that the attachment was illegal and without jurisdiction and in the absence of a prohibitory order under Section 79 (3), the petitioner would not be convicted of theft in removing his own crop which he had grown and of which he was in possession.
11. In the result, the order of conviction and sentence passed by the Courts below is set aside and the petitioner is acquitted. Fines, if paid, be refunded. The revision is allowed.