Standing crop, when severed from the earth, can be the subject of theft as per the Indian Penal Code.

1. The five respondents were convicted by the Sub-Magistrate, Perinthalmanna, for offences under S.147 and 379 I.P.C. and fined Rs. 25/- each under the first count and Rs. 75/- under the second. Their appeal to the District Magistrate, Palghat was unsuccessful.

2. The case against them was that they committed theft of standing paddy crop which had been attached in pursuance of a decree of the Munsiff's Court Perinthalmanna. Pw. 3 Gopala Pillai is the decree-holder. On his application an order of attachment was issued by the said Munsiff's Court attaching the standing paddy crop on seven items of property. Pw. 2 the Amin of the court effected the attachment and entrusted the crop to Pw.1 on Kychit. Accused 1 and 2 who are the judgment-debtors, applied for and obtained the release of the crops in four items of property on deposit of Rs. 250/- in court. The prosecution case is that on the day succeeding the order of release the accused harvested the crops from all the items of property including those in regard to which the attachment was still in force. The stolen paddy and straw were later recovered from the house of accused 2. Pw.1 reported the matter to the Munsiff and also filed a complaint with the Sub-Magistrate, Perinthalmanna who took the case on file.

3. The accused's plea was one of total denial. They would have it that the crop must have been harvested by one Moitheenkutty to whom accused 1 and 2 had assigned their rights over the property long before the attachment.

4. The concurrent findings of the lower courts, that the crops were under attachment, that the accused had cut and removed the paddy crop and that it was later recovered from the house of accused 2 were not disputed before us. The main objection raised by the learned defence counsel is that since standing crop is not movable property it cannot be a subject of theft. It is argued that since the Indian Penal Code defines movable property as "corporeal property of every description except land and things attached to the earth, or permanently fastened to anything which is attached to the earth" (Vide S.22), standing crops which are 'things attached to the earth' must be considered immovable property. We do not think this argument is valid. Standing crop so long as it is attached to the earth is not'movable property' as defined in the Code, but the moment it is severed from the earth its character is changed and it can become the subject of theft. In fact the very act of severance may constitute the offence of theft. This is made quite clear by Explanation.) and 2 to S.378 I.P.C. which deals with the offence of theft. Explanation.) reads thus:

"A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth".

and Explanation.2 is:

"A moving effected by the same act which effects the severance, may be a theft." The position is made even clearer by illustration (a) to the section which reads thus:

"(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft."

What is applicable to standing trees must be equally applicable to standing paddy crops. The learned defence counsel cited a decision of the Madras High Court in support of his contention that there can be no theft of a standing crop. In Nallamadan Chettiar v. Emperor - AIR. 1939 Madras 509 - it was held that removing crops which had been attached by a Madras Village Court will not constitute fraud as such courts are not competent to attach immovable property and standing crops would be immovable property under S.22 of the Indian Penal Code. We do not think this decision has any application to the present case. What was decided in that case was that standing crop's being immovable property cannot be attached by M