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Lambodar Dowrah and ors. Vs. Priyanath Dowrah and - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1952CriLJ994
AppellantLambodar Dowrah and ors.
RespondentPriyanath Dowrah and ;The State
Cases ReferredNand Kishore v. Radha Kishan
Excerpt:
- .....it was held in emperor v. bande ali ilr (1939) 2 cal 419 that the removal of crops standing on land attached and taken possession of by the court under section 145, cr.p.c., amounts to theft. i am inclined to agree with this view. the attachment has been found to be valid. it is not disputed that the crop though not expressly mentioned in the order of attachment is covered by it. the effect of the attachment was that the property passed into 'custodia legis', vide nand kishore v. radha kishan air 1943 pat 124. the removal of the crop in the circumstances of this case has all the elements of the offence of theft. i have no doubt therefore that facts proved constitute an offence of theft and the trial of the petitioners for this offence was not barred by reason of the absence of a.....
Judgment:

Ram Labhaya, J.

1. The three petitioners were convicted under Section 379, I.P.C., for reaping and taking away the paddy crop from land which was attached by an order of the Court under Section 145, Cr.P.C. They were sentenced each to undergo R.I. for 3 months in addition to a fine of Rs. 300/-, (in default each was to suffer R.I. for 3 months more). On appeal, the convictions were maintained but the learned Sessions Judge, U.A.D., remitted the sentence of imprisonment in each case. The sentence of fine was allowed to stand.

2. The prosecution case is that there was a dispute about the land between the complainant Priyanath Dowrah and the accused. The complainant in his petition under Section 145, Cr.P.C., alleged that the opposite party consisting of 6 persons including the three petitioners were trying to take away the paddy sown by him after dispossessing him from the said land. It was in this proceeding that by a preliminary order of the Court, the land was attached. The order for the attachment of the land was passed on the 24th November 1949. It was forwarded to the Officer-in-Charge of Amguri Police Station for service and also for attachment of the land in dispute on the 5th December 1949. The preliminary order shows that the disputed land which was to be attached measured 22 B. 3 K. 17 Ls. and that it was covered by two pattas Nos. 186 and 179. In his complaint under Section 379, I.P.C., from which this revision petition arises, the complainant alleged that the land was duly attached; that three days after the attachment, the accused came in a body and after reaping the harvest removed the paddy from 5 bighas of land which had been attached. It was further stated in the complaint that the paddy was still being reaped. The price of the paddy already taken away was estimated at Rs. 350/-. The complaint was against 8 persons including the 3 petitioners.

3. It has been contended on behalf of the petitioners that the land in dispute which had to be attached was not clearly or definitely specified in the order. The order of attachment, therefore, was defective. As a result, no specified plot of land could be said to have been attached.

4. I do not think this contention should prevail. The are of the land to be attached was stated. The patta numbers covering the land were also given. The Assistant Sub-Inspector of Police who executed the order deposed at the trial that in compliance with the order of the Court, he had attached it by putting pegs on the boundaries shown by both the parties. He stated that the attached land was scattered at three places. He did not specifically state the number of plots. But he obtained the signatures of two out of the petitioners and thumb impression of the third on his report. This shows that the petitioners were not only present but pointed out the land in dispute and were fully aware that the disputed land had been attached. There was due compliance with the order of the Court and attachment was effected. No other objection has been raised to the validity of the attachment.

5. The second contention raised is that it does not appear from the record on what date the attachment was effected. This contention is baseless. The report on the order shows that the attachment was effected on the 8th December 1949. The complainant in his complaint, which was put in on the 13th December 1949, stated that the removal of the crop occurred 3 days after the attachment. At the trial evidence was led to show that though a part of the paddy had been reaped before the attachment there was also removal of paddy from the attached land after it had been attached.

6. I see no reason to differ from the finding of the Courts below on the point that the accused removed the paddy from the attached land after the attachment had been effected.

7. The third contention assumed that the land was attached and it was urged that as the petitioners were parties to the proceeding under Section 145, Cr.P.C., if they removed the paddy in violation of the order of the Court attaching the land with the crop on it, they would be guilty of an offence under Section 188, I.P.C., and for that offence a complaint by the Court would be necessary, A conviction under Section 379, I.P.C., in these1 circumstances, is not legal. It was also pointed 'out that dishonest intention, which was a necessary ingredient of the offence under Section 379, I.P.C., on the part of the petitioners also had not been proved.

8. In support of the contention that the accused could have been tried only under Section 188, I.P.C., on the complaint of the Court; the learned Counsel has relied on Nirmal Ch. Chatterjee v. Mahendralal 41 Cal WN 1325. This case does not support the contention he has raised. On the other hand, it was held in Emperor v. Bande Ali ILR (1939) 2 Cal 419 that the removal of crops standing on land attached and taken possession of by the Court under Section 145, Cr.P.C., amounts to theft. I am inclined to agree with this view. The attachment has been found to be valid. It is not disputed that the crop though not expressly mentioned in the order of attachment is covered by it. The effect of the attachment was that the property passed into 'custodia legis', vide Nand Kishore v. Radha Kishan AIR 1943 Pat 124. The removal of the crop in the circumstances of this case has all the elements of the offence of theft. I have no doubt therefore that facts proved constitute an offence of theft and the trial of the petitioners for this offence was not barred by reason of the absence of a complaint from the Court which attached, the land as it is not one of the offences to which Section 195, Cr. P. C, applies. The conviction under Section 379, I. P. C, would be perfectly legal. It might have been possible to convict the accused even under Section 188, I. P. C, but the omission if any in this respect does not affect the legality of his conviction under Section 379, I. P. C.

9. The learned Counsel has riot been able to satisfy me that the removal of paddy was not with any dishonest intention. There was a dispute about the land and the crops thereon. Attachment had been effected with knowledge of the petitioners and in their presence. It has been found as a fact that some removal of the paddy occurred after the attachment. The petitioners must be presumed to intend the natural consequences of their acts. Dishonest intention in this case is a very legitimate inference from facts proved.

10. Some reduction in sentence appears to be called for. The complainant assessed the loss at Rs. 350/-. Each of the petitioners has been sentenced to a fine of Rs. 300/-. I think a fine of Rs. 200/- in each case will meet the needs of the situation. The petition is allowed to this extent that the fine imposed is reduced to Rs. 200/- in the case of each petitioner. The sentence of imprisonment in default of payment of fine shall stand.


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