EMPEROR Vs. AHAMMAD (AHMED) SHEIKH

JUDGEMENT

(1.) Under Section 338, Criminal P.C., I transmit the record of the case noted below to be laid before the High Court with the following report:

(2.) On the 5 December 1927 a peon of the civil Court (P.W. 1) went to execute a warrant of attachment of moveable property, Ex. 1, issued by the Munsif, 2nd Court, Khulna, against one Ahmed Sheik, judgment-debtor, who intimates his liability to pay the decretal amount. On this the peon attached four bullocks, two carts, a bedstead and a chair on the identification of P.W. 2, gomsata of the decree-holder. The peon and his party then removed the attached property to the river ghat some 7-8 rasis from the house of the judgment-debtor. Then Ahmed Sheik, Adiladdi Sheik, Kushai Sheik, Gani Sheik, the present petitioners, and some other persons came to the Ghat, one of them pushed Nani Gopal, P.W. 2 and they then took away all the property which had been attached. The peon in due course made a complaint to the Munsif, the proceedings were instituted in the criminal Court, as a result of which the four petitioners named above have been convicted under Secs.183 and 147, I.P.C. and sentenced to pay a fine of Rs. 50 each or in default to suffer li months rigorous imprisonment each.

(3.) At the time of the trial a number of defences were set up on behalf of the accused. In the first place the fact of attachment was denied in toto, and it was stated that P.W. 2 and some other men came to the house of the judgment-debtor before dawn, and were opposed and went away without effecting any attachment, it was also contended that the attachment made by the peon was not a legal attachment and that the peon had no legal justification for removing the attached property from the ban of the judgment-debtor, and hence no offences were committed in taking away the property from his custody. The lower Court has disbelieved the story of the accused regarding attempt at the stealthy removal before dawn, and has also held that the attachment effected by the peon was legal. I agree with the findings on these matters. I have no doubt from the evidence adduced that the facts as stated by the witnesses for the prosecution are true and that the property was removed to the river ghat after attachment and taken away from there forcibly by the accused party, including the present petitioners. As regards the fact of actual seizure in pursuance of the attachment, the evidence of the P. Ws. shows clearly that the peon actually touched some of the property attached, and distinctly pointed out the rest of the property stating that he was attaching it under the warrant. The evidence also proves satisfactorily that all the property was removed to the river ghat, and these facts are sufficient to prove attachment by actual seizure within the meaning of Order 21, Rule 43, Civil P.C. I do not think, however, that the removal of the property from the bari of the judgment-debtor was a legal removal land it is for this reason that I consider it necessary to refer this case to the High Court and to recommend that the convictions under Secs.183 and 147, I.P.C., should be set aside.