The judgment established that illegal attachment and seizure of property may not constitute theft or robbery if there is no dishonest intention, as defined by the Indian Penal Code.

P. Govinda Menon, J.

1. These two appeals arise out of the judgment of the Additional Sessions Judge, Kottayam in Sessions Case 36 of 1964. Criminal Appeal 173/64 is by accused 3 and 4 who were convicted under S.392 and 353 I.P.C. and Criminal Appeal 252/64 is by the State against the acquittal of accused 1, 2, 5 and 6 of all offences and against the acquittal of accused 3 and 4 of the offences under S.395, 120B and 342 I. P. C.

2. The facts of the case shortly stated is as follows:

A suit O. S. 107/63 was instituted in the Subordinate Judge's Court, Kottayam against the second accused for recovery of money. In that suit an application made under O.38 R.5, C. P. C. for attachment before judgment of a bus K. L. K. 2036 belonging to the second accused. Learned Judge ordered attachment and Ext. P. 1(b) is the warrant of attachment. On the morning of 25-9-63, P.W. 1 the Amin of the court along with P.W. 2 the litigation agent of the plaintiff went to the Mundakayam bus stand. At about 8 a. m. the bus came to the shed with passengers. After the passengers had alighted from the bus the Amin seized the bus preparing the usual attachment report. As there was no driver available he requisitioned the services of the fourth accused who was the driver of this bus to take the bus to the Sub Court, Kottayam. When they were about to start the third accused also got in. When the bus reached the civil station buildings at about 3 p.m. P.W. 1 asked the fourth accused to take it inside the court compound, but the third accused suggested that if the bus is taken to the town they could meet the defendant in the suit and settle the matter. The Amin agreed to the suggestion and the bus was driven to the premises of the M. T. company. After reaching Kottayam they could not meet either accused 1 or 2 and so it was decided to keep the bus in a shed belonging to the K. M. S. company at Nagampadam for the night for production in court the next day. On the way to the shed it is alleged P.Ws.1 and 2 were forced to get down from the bus and the fourth accused drove away the bus without the consent of the Amin. P.W. 1 and 2 returned to the M. T. company and under instructions from P.W. 3 the plaintiff's advocate, P.W. 1 went to the Kottayam East police station and presented a written complaint Ext. P. 4. The sub Inspector recorded a statement Ext. P. 5 from him and on the basis of Ext. P. 4 and P. 5 a case was registered. He then took up investigation and finally the 6 accused persons were put up for trial.

3. Accused denied commission of the offence. According to the fourth accused the Amin P.W. 1 came to the bus stand and wanted to attach the bus, but he told him that the bus belonged to one K.M. Thomas and without his permission he cannot deliver the bus to him. As directed by the Amin he took the bus to Kottayam. From there they went to see the owner K.M. Thomas, PWs 1 and 2 and the manager of the M. T. Company followed in a car. Whey they met K.M. Thomas and told him about the warrant of attachment K.M. Thomas told the Amin that the bus belonged to him and cannot be attached and taken into custody and so PWs 1 and 2 returned and it is his case that subsequently this false case has been got up against him. The third accused also denied the commission of the offence.

On the side of the defence one witness the Provident Fund Inspector, Trichur examined and he produced certain statements of account for proving that the bus was really in the possession of K.M.S. company and that the fourth accused was a driver under the K.M.S. company.

4. Learned Judge on the evidence found that the offence of criminal conspiracy had not been made out against anyone of the accused. The charge of abetment and charge under S.201, I. P. C. against accused 1 and 2 were also found against. Learned Judge further found that there was no reliable evidence, that accused 5 and 6 were present in the bus and had participated in the occurrence and acquitted them. Learned Judge however