1. The Deputy Magistrate was, in my opinion, right in holding that the alleged act of the accused in cutting and removing the standing crops which had been attached by the Civil Court did not amount to theft. In order to constitute theft there must be moving of moveable property with the intention of taking it dishonestly out of the possession of another person. Standing crops are, for the purposes of the Indian Penal Code, immoveable property, and when such crops are attached under Section 274 of the Civil Procedure Code, possession of them is not transferred to the Court. Possession remains with the owner, but he is forbidden to alienate and charge the crops.
2. When the crops are cut they become moveable property, but it would, I think, be difficult to conclude that possession of them is transferred to the Court or its officer by the act of cutting. the cutting, however, cannot put an end to the attachment once properly effected. The crops must be regarded as moveable property under attachment, but in the possession, as before, of the judgment-debtor. I am not unmindful of the views of this Court in Criminal Revision Cases Nos. 459 of 1883 and 121 of 1887. (Wier's 'Law of Offences, ' pp 245), 245, in the former of which it was assumed, and in the latter of which it was hold, that theft could be committed by the owner of a crop under attachment removing it. In both of those cases, however, the attachment was by distraint made by a Revenue Court and the mode and effect of attachment by a Civil Court as regards possession was not considered. No doubt, when in the present case the crops was cut, the Court or its officer had the right to at once take possession of it, but the right to possession is not the same thing as actual possession. The actual possession remained with the judgment-debtor, and when he removed the crops he did not take it out of the possession of the Court or its officer or any other person. the offence committed was, therefore, not theft, but it was criminal misappropriation within the meaning of Section 408, Indian Penal Code, inasmuch as the judgment-debtor thereby dishonestly converted the property to his own use. The act was also an offence punishable under Section 424, Indian Penal Code, viz., dishonest removal of property, even when such property belongs to the person removing it, and the accused might properly have been convicted of the offences by the Sub-Magistrate, or, by the Deputy Magistrate when this case came before him in appeal.
3. I would, therefore, set aside the order of acquittal made by the Deputy Magistrate and direct the Deputy Magistrate to restore the appeal to his file and dispose of it on the merits and with reference to the above observations.
4. I agree to the order proposed on the ground that the case was not one of theft, but fell under Section 424, of the Penal Code.