RAMASWAMY NAICKEN Vs. DANDAKARAN

JUDGEMENT

(1.) IN this case a conviction of theft was based upon the rescue by the respondents of certain buffaloes which had been attached under a decree by an amin and had been handed over to two persons on their furnishing security. The conviction has been set aside and the respondents acquitted by the learned Sessions Judge and this is a revision petition against the acquittal.

(2.) THE first question which it raises is whether in the circumstances the respondents act in rescuing the buffaloes amounted to theft. It may very well be that they committed an unlawful act in taking them out of the custody of the sureties, but it does not seem to me necessarily to follow that that unlawful act was in the nature of theft. THE finding of the lower appellate Court, though it is expressed in somewhat indefinite terms, appears to be that the respondents actually owned the cattle which were attached and that they did not belong to the judgment-debtor. Such a case, of course, differs entirely from one in which the property attached is rescued either by the judgment-debtor or by somebody on his behalf. I have been referred to Emperor V/s. Kamla Pat (1926) I.L.R. 48 All. 368 for support of the proposition that in all cases of rescue from lawful custody (that particular case was from the possession of a receiver in insolvency) it must be held that theft is committed. But I do not find that the question of the presence of the element of dishonesty has been very explicitly discussed by the learned Judges. Mukerji, j. does not appear to allude to it and only points out that it is not in accordance with public policy to allow persons in the position of receivers etc. to be dispossessed of property except by due process of law; and Sulaiman, J. contents himself with the view that any person who takes possession of such property would obviously be guilty under Section 379 if he knew that the property had been attached and was therefore necessarily acting dishonestly. THE learned Public Prosecutor has shown me an English case Thomas Knight (1908) 1 Cr. App. R. 186 , where this particular point of the ownership of the property attached was considered and it was held that where the property of which execution had been taken belonged to the person who had rescued it and not to the judgment-debtor, he could not be found guilty of larceny; and, contrariwise that only if the execution had been issued against the goods of that person could he have been held so guilty. This seems to me to express a very reasonable position though I do not think it is really necessary to reach a definite decision on the point here, because even were the act technically theft I have not been satisfied that the acquittal in this case ought on general grounds to be revised. THE petition is presented by an agent of the decree-holder and although it is quite rightly urged upon me that it is against public policy to allow such rescues to take place, I cannot but think that it is the business of those who are responsible for the administration of justice to take action where necessary and not to leave it to a private complainant. And if the buffaloes really did belong to the respondents I am clear that the case is not a fit one to exercise the powers of revision. I therefore dismiss the petition.