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Sheik Dawood Rowther Vs. Abdul Kadar Rowther - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1938Mad976; (1938)2MLJ843
AppellantSheik Dawood Rowther
RespondentAbdul Kadar Rowther
Excerpt:
- - 5. if i were not satisfied about the errors of law having been committed by the subordinate courts i would not be interfering in revision. but since the subordinate judge does not appear to have taken the matter seriously or in any case failed to consider the various matters which he was required to consider before taking such a serious step and since the learned district judge did not pay sufficient attention to the petitioner's contentions that there was no intention on his part to remove the crops clandestinely and that his action was bona fide and lastly the requirements of order 21, rule 45 were not kept' in mind by the court ordering attachment, i hold that the order under section 476 was not justified......a complaint to be filed against him under section 476, criminal procedure code. the order of the learned subordinate judge was perfunctory and did not seem to comply with the requirements of the section. an appeal against this order was dismissed by the learned district judge who tried to read into the order things which were not mentioned there. he however came to a distinct finding that the prosecution was expedient in the interests of justice. the petitioner has now come up in revision.2. it appears to be rather strange that the provisions of 0.21, rule 45 (2), civil procedure code, were not noticed by either of the courts below. the crops are perishable and it has been for that reason provided in the above-stated rule that the judgment-debtor may tend, cut, gather and store the.....
Judgment:
ORDER

Abdur Rahman, J.

1. The Subordinate Judge of Kumbakonam ordered a complaint to be made against the petitioner on the ground that certain crops which were already attached on 26th September, 1936, under the orders of the Court were harvested by him on or about the 8th of October in that year. The Court relying mainly on the order of attachment and the receiver's report held that a prima facie case was made out under Section 206, Indian Penal Code, against the petitioner and ordered a complaint to be filed against him under Section 476, Criminal Procedure Code. The order of the learned Subordinate Judge was perfunctory and did not seem to comply with the requirements of the section. An appeal against this order was dismissed by the learned District Judge who tried to read into the order things which were not mentioned there. He however came to a distinct finding that the prosecution was expedient in the interests of justice. The petitioner has now come up in revision.

2. It appears to be rather strange that the provisions of 0.21, Rule 45 (2), Civil Procedure Code, were not noticed by either of the Courts below. The crops are perishable and it has been for that reason provided in the above-stated rule that the judgment-debtor may tend, cut, gather and store the produce in spite of an order of attachment, subject to such conditions as may have been imposed by the Court either in the order of attachment or in any subsequent order. I have seen the order of attachment issued by the Court and no condition was imposed in that order. Nor was any condition imposed on the judgment-debtor subsequently. It is found by the learned District Judge that the evidence showed that the harvest was ripe for being cut by the 6th of October. If it were so, the crops would have been ruined if allowed to remain standing for any length of time and it was necessary for the judgment-debtor as much in his own interests as in those of the attaching decree-holder that they were cut particularly when no directions were given by the attaching Court either at the time of ordering attachment or subsequently.

3. This is not all. Before a person can be ordered to be prosecuted under Section 206, Indian Penal Code, there must be some evidence to show that he had fraudulently removed, concealed, transferred or delivered to any person any property or any interest therein* intending thereby to prevent the property or interest from being taken in the execution of the decree which was passed against him. Not to say of any evidence on the point that the petitioner had removed, concealed, transferred or delivered the crops which had been cut by him either fraudulently or otherwise, there is no allegation that he ever did or intended to do so. The mere harvesting of crops would not bring him within the scope of Section 206 unless it were shown that he did one of the things mentioned above with a fraudulent intent. It might be said that the petitioner appears to have made an attempt to commit the offence. But even then it would have to be shown that he did so with the intention of preventing the crops from being taken in the execution of decree and not merely with the intention of saving them, as appears to have been the case here. The point was taken by the petitioner before the learned District Judge but no attention seems to have been paid by him to this part of the case.

4. In the end, there is nothing to show on the record that the petitioner knew of the crops having been attached under the orders of the Court. The facts that certain other persons knew of the attachment cannot be sufficient to prove that the petitioner had any knowledge. Nor is the fact that his crops were attached on previous occasions relevant to show that they were attached on this occasion.

5. If I were not satisfied about the errors of law having been committed by the Subordinate Courts I would not be interfering in revision. But since the Subordinate Judge does not appear to have taken the matter seriously or in any case failed to consider the various matters which he was required to consider before taking such a serious step and since the learned District Judge did not pay sufficient attention to the petitioner's contentions that there was no intention on his part to remove the crops clandestinely and that his action was bona fide and lastly the requirements of Order 21, Rule 45 were not kept' in mind by the Court ordering attachment, I hold that the order under Section 476 was not justified. I would therefore vacate the order. The complaint if filed will now be withdrawn.


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