KAMLAPAT Vs. EMPEROR

JUDGEMENT

(1.) This is a revision against the judgment of the learned Sessions Judge passed in appeal by which he confirmed the convictions and sentences passed on the applicants on a charge under Section 379 of the Indian Penal Code. The facts are stated to be this. One Mulkhan Singh was adjudicated an insolvent and an Official Receiver took charge of his property. In order to realise the property, he attached the same, which was some agricultural produce. The Receiver sent his clerk to effect attachment and an attachment was formally effected on the 30 of March 1925. One Badlu was put in charge of the property as a guard. The applicants removed the property from the possession of Badlu on the 3 of April 1925. They were charged with and were convicted of theft.

(2.) Two points have been raised in this Court. The first is that the act of the applicants was done honestly although they had a knowledge of the fact that the property had been attached by the Receiver. Secondly, it was urged that the attachment was invalid in law as not having been effected by the Receiver in person. In the course of the argument the second point was abandoned and it was accepted that an act which could be done by a Receiver himself could be done by an agent appointed by him.

(3.) The first question is the one which has to be decided and there seems to be no clear authority on the point. In the case of Chunnoo V/s. Emperor Ind. Cas. 142 : 8 A.L.J. 656 : 12 Cr. L. J. 304. it was held that where a certain moveable property had been attached in execution of a decree as belonging to a judgment-debtor and the judgment-debtor himself took possession of the property, he was guilty of the offence of theft. The whole question is whether the Receiver was in possession of the property or not. If the Receiver was in possession of the property and if the applicants removed that property from the possession of the Receiver, even under an assertion of bona fide claim of title, they ought to be held liable under Section 379 of the Indian Penal Code. The gist of the offence is that a person shall not remove from any person's possession without his consent any moveable property. The remedy in such a case of the true owner would be to move the Court under Section 68 of the Provincial Insolvency Act and not to take the law in his own hand.