1. This is a reference made to us by the learned Sessions Judge of Khulna under Section 438, Criminal P.C. A person named Nani Gopal Roy was convicted on 26th January 1932, by a First Class Magistrate of an offence punishable under Section 117, I.P.C. He was sentenced to a term of imprisonment and also to pay a fine of Rs. 500. On 17th February 1932, a warrant was issued under Section 386(1)(a) Criminal P.C., authorising the officer in charge of a certain police station, to attach any moveable property belonging to the convicted person and to sell such property to satisfy the fine, if the fine was not paid within 15 days after attachment was effected. The police officer proceeded to attach and seize certain moveable properties, and the letter of reference states that he also sold certain of the articles seized before the expiration of the period specified in the warrant. This fact however is not of importance for the purposes of the reference. Subsequently to the sale, the brothers of the convicted person filed a petition before the Magistrate for release of the moveable seized, on the allegation that they were the joint property of the convicted person and his five brothers, or, in other words, on the allegation that the interest of the convicted person in the moveables seized amounted only to a l/6th undivided share. In accordance with the rules framed by the Local Government under S.386, (2), Criminal P.C., the matter was referred to a Sub-Deputy Magistrate who reported that the convicted person was only entitled to a l/6th share in the attached property.
2. The Sub-Deputy Magistrate however stated that he was of opinion that the attachment and seizure of the moveables were nevertheless legal; and on this report, the Magistrate rejected the petition filed by the five brothers. The learned Sessions Judge states that he considers the order of the Magistrate rejecting the petition to be erroneous. To decide the question raised by the letter of reference, it is necessary to consider the provisions of Section 386(1)(a), Criminal P.C. That section gives power to a Court passing a sentence of fine to take steps for recovering the amount of fine by, among other things, issuing a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender. The first point to consider is whether these words entitle an officer executing such a warrant to attach by seizure and to sell moveable property in which the offender has only an undivided fractional share. Prior to the Code of Criminal Procedure Amendment Act of 1923, the section authorized the Court to issue a warrant for the levy of the fine by distress and sale of any moveable property belonging to the offender. It was held as long ago as 1892 by this Court in the case of Queen-Empress v. Sitanath Mitra (1893) 20 Cal 478 that under the section, as it then stood, a Magistrate could only attach moveables of which the delinquent was the sole owner. The Court in laying this down must be held to have meant by 'attachment' 'attachment by seizure,' because as the section then stood, that was the only form of attachment contemplated by it, In my opinion, the case is still an authority for the proposition that moveable property in which the offender, has only an undivided fractional interest, is not liable to attachment by seizure and subsequent sale. This has been recognized quite recently by a Special Bench of the Patna High Court, in the case of Rajendra Prosad Misser v. Emperor AIR 1932 Pat 292.
3. This view is also taken by Pakenham Walsh, J., in the case, In re Marina Narasanna AIR 1932 Mad 538 to which the learned Deputy Legal Remembrancer has directed our attention. The same question was raised before us in Manmatha Nath v. Emperor : AIR1933Cal401 . In those cases however it was not necessary to come to a decision on the point, as we were of opinion that in the particular circumstances of each of these the learned Sessions Judge had no jurisdiction to make a reference under Section 438, Criminal P C. I wish however to refer to my judgment in those cases, because when they were being argued before us we were informed that no rules had been framed by the Local Government under Section 386(2), Criminal P.C. This information turns out not to be accurate. Our attention has been drawn to the rules during the hearing of this case, and in fact the inquiry made by the Sub-Deputy Magistrate was made in pursuance of the powers given by those rules. Nothing however that has been said in the course of argument in this case has caused me to modify my opinion expressed in the former cases, namely, that the authorities that lay down that moveable property in which the offender has only a fractional share is not liable to attachment by seizure or sale, are correct and should bo followed in preference to the case of Shivalingappa Nijappa Tubchi v. Gurlingava AIR 1926 Bom 103 where the contrary view was taken. It follows therefore that the Magistrate was wrong in rejecting the petition before him on the finding arrived at by the Sub-Deputy Magistrate. In these circumstances I am of opinion that the reference should be accepted and the order of the Magistrate rejecting the petition should bo set aside. It follows that the attached property will be released from attachment. This order disposes of the reference,
4. The learned Deputy Legal Remembrancer has argued on the authority of the decision of Packenham Walsh, J., cited above that although attachment by seizure may not in the circumstances be legitimate, yet it does not follow that the offender's interest in the property may not be attached in some other way under Section 386(1)(a), Criminal P.C. He suggests that it is within the jurisdiction of the Court under that section to attach the offender's share by a prohibitory order or by appointment of a receiver and thereafter to put such share up to sale in accordance with a procedure analogous to that familiar in the execution of civil decrees. This matter is not before us, and we are not prepared to express any opinion upon it. I only desire to say that as far as I am concerned, my decision that in the circumstances of this case attachment by seizure was not permissible. It is not to be taken in any way as indicating that I hold that it is not possible under Section 386(1)(a) to attach an undivided share of a moveable property by some other method.
5. I agree.