Govinda Menon, J.- These two appeals arise out of the judgment of the Additional Sessions Judge, Kottayam in Sessions Case No. 36 of 1964. Criminal Appeal No. 173 of 1964 is by accused 3 and 4 who were convicted under sections 392 and 353, Indian Penal Code and Criminal Appeal No. 252 of 1964 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 sections 395, 120-B and 342, Indian Penal Code. The facts of the case shortly stated is as follows: A suit O.S. No. 107 of 1963 was instituted in the Subordinate Judge’s Court, Kottayam, against the second accused for recovery of money. In that suit an application was made under Order 38, rule 5, Civil Procedure Code, for attachment before judgment of a bus K.L.K. 2036 belonging to the second accused. Learned Judge ordered attachment and Exhibit P-1(b)is the warrant of attachment. On the morning of 25th September, 1963 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. 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.Ws. 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 Exhibit P-4. The Sub-Inspector recorded a statement Exhibit P-5 from him and on the basis of Exhibits 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. 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, P.Ws. 1 and 2 and the manager of the M.T. Company followed in a car. When 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 P.Ws. 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, was 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. Learned Judge on the evidence found that the offence of criminal conspiracy had not been made out against any one of the accused. The charge of abatement and charge under section 201, Indian Penal Code against accused 1 and 2 were also found against. Learned Judge on the evidence found that the offence of criminal conspiracy had not been made out against any one of the accused. The charge of abatement and charge under section 201, Indian Penal Code 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 found accused 3 and 4 guilty of the offence of robbery under section 392, Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years. They were also found guilty of using criminal force against a public servant and were convicted under section 353, Indian Penal Code and each of them were sentenced to rigorous imprisonment for 6 months. Now the question that arises for decision is whether the prosecution has succeeded in proving that the bus was legally attached by the Amin, whether the bus belongs to the second accused who is the defendant in the suit and whether the fourth accused in taking away the bus could be said to have committed any criminal offence. The main contention raised in the case was that non-compliance with the provisions of Order 38, rule 5, would make the order of attachment illegal and ab initio void and therefore the attachment even if it had been effected would simply be a nullity. At the request of the learned Counsel for the accused the following question was referred for decision by a Full Bench: “Whether non-compliance of the provisions of Order 38, rule 5, would have the effect of making the order ultra vires and void and the consequent attachment a nullity and whether in passing such an order there is total lack of jurisdiction.” The Full Bench on a consideration of the entire case-law on the subject held that even though the order of conditional attachment in this case was a totally illegal order and not in accordance with law and liable to be set aside in appropriate proceedings, it is an order made with jurisdiction and therefore not void and cannot be considered to be a nullity. After this decision the case was again posted and heard. It cannot be seriously contended that there was in fact no attachment and no seizure of the bus. After this decision the case was again posted and heard. It cannot be seriously contended that there was in fact no attachment and no seizure of the bus. Besides the evidence of the Amin P.W. 1 and also of P.W. 2 the plaintiff’s agent we have the circumstance that the fourth accused did take the bus to Kottayam. If really there was no attachment it is most unlikely that the fourth accused would have agreed to stop the service and take the bus to Kottayam as ordered by the Amin. There is then the evidence of P.W. 3 the advocate that when P.Ws. 1 and 2 reached Kottayam in the bus P.W. 1 had the attachment report with him and that it was actually shown to him and he had perused the same. There is no reason to doubt his evidence. Besides all this, there is the admission of the second accused contained in Exhibit P-10(a)and Exhibit P-27 affidavits that the bus was in fact attached by the Amin. In the face of all this evidence we entertain nodoubt that the bus was actually seized by the Amin although his subsequent action is allowing the bus to be taken to Kottayam and negotiating for a settlement was not quite regular and was unauthorised. Learned Counsel referred us to various discrepancies in the evidence of the amin but as stated by the learned Judge the amin was probably apprehending the possibility of disciplinary proceedings being taken against him for not taking the attached bus straight to the Court and that accounted for his suppressing the fact of the bus having been brought to Kottayam at 3 p.m. and that is why in Exhibits P-4 and P-5 he stated that the bus had reached Kottayam only late at 5.15 p.m. after the rising of the Court. It was then stated that the order of attachment Exhibit P-1(b)is wholly illegal as found by the Full Bench and the procedure adopted in effecting the attachment by actual seizure is also illegal as the bus was not in possession of the defendant in the suit and Order 21, rule 43 would not apply to the case and the bus being in the possession of a stranger, attachment could not have been effected by actual seizure. It is, therefore, urged that as there was no valid attachment, removal cannot be said to be dishonest so as to constitute the offence of theft or robbery. Raman Nayar, J., delivering the judgment of the Full Bench has stated: “As we have seen Exhibit P-1(b)is headed ‘Order of conditional attachment’ and it says that the attachment is in respect of the decree that may be passed in favour of the plaintiff. It is, therefore, clear that the order is an order of conditional attachment under Order 38, rule 5(3) of the Code. It is equally clear that it was made in utter disregard of the law. It does not say that the Court is satisfied that the grounds necessary for making an order under Order 38, rule 5 exist. But, that perhaps, is not an essential requirement since the rule does not say that the satisfaction should be recorded in writing. There is, however, the obligatory requirement of sub-rule (1) of the rule that the Court should make an order directing the defendant either to furnish security or to appear and show cause why he should not furnish security-the ‘may’ of the sub-rule only means that it is within the discretion of the Court to take action under the rule or not to take action; but if it decides to take action then it must make the direction contemplated-there is no discretion in that matter. It does not appear that any such direction was issued, and, in any case, the direction for conditional attachment under sub-rule (3) was not made, as that sub-rule requires it should be made in an order under sub-rule (1) directing the defendant to furnish security or appear and show cause against furnishing security. And the condition that the property should be held under attachment until further orders from the Court unless the suit claim is paid is altogether unauthorised. There can be no doubt that Exhibit P-1(b)was an utterly wrong order, an erroneous or illegal order in the sense that it was not in accordance with law.” The next objection is with regard to the mode of attachment. Order 38, rule 7, provides that attachment before judgment shall be made in the manner provided for the attachment of property in execution of a decree. How movable property in the possession of the judgment-debtor is to be attached is provided in Order 21, rule 43. Order 38, rule 7, provides that attachment before judgment shall be made in the manner provided for the attachment of property in execution of a decree. How movable property in the possession of the judgment-debtor is to be attached is provided in Order 21, rule 43. It says: “Where the property to be attached is movable property, other than agricultural produce in the possession of the judgment-debtor, the attachment shall be made by actual seizure and the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates, and shall be responsible for the due custody thereof. * * * * * *” Under Order 21, rule 46 in the case of movable property not in the possession of the judgment-debtor it is provided that the attachment shall be made by written order prohibiting the person in possession of the same from giving it over to the judgment-debtor. What is argued is that the present order being one under Order 21, rule 43, for actual seizure of the movable property which was not with the defendant the order is illegal and possession cannot be considered to have legally passed to the amin P.W. 1 and removal from him under such circumstances would not amount to theft. Now coming to the question whether the bus was in the possession of the defendant in the suit who is the second accused in the case the evidence seems to be almost clear that it was not in the possession of the second accused, but was really in the possession of the K.M.S. Company. In the attachment report Exhibit P-3(a)P.W. 1 has stated that the bus was exhibiting two name-boards, one at the front top and the other at the rear top containing the letters K.M.S., which is the abbreviation for Kalapurackal motor service belonging to Sri K.M. Thomas. It was also pointed out that the presence of letter K.M.T. on the left hand side of the body of the bus near the entrance made mention of by the amin in his report stands for the name ‘K.M. Thomas’ and it is argued that this would show that the bus belonged to K.M. Thomas and was being operated as a K.M.S. bus service. In the police charge the bus is referred to as: “Onnam Sakshi 25-9-63 il 12-30 p.m. innu Mundakayam Bus Stand il Veehu niyamanusaranam Japathi Cheythu Bandopast il Yeduthu Kaivasathilum Adheenathayilum Akkiya 2-am prathiyute vaka Rs. 6,000 vila varunna K.L.K. 2036-am Number K.M.S. Bus.” P.W. 1 was questioned as to whether the bus he attached was not a K.M.S. bus and whether he had not told the police during investigation that the bus he attached was a K.M.S. bus. Though P.W. 1 denied having stated so, P.W. 11 the Investigating Officer has with reference to his case-diary stated that P.W. 1 actually told him it was a K.M.S. bus, that he had attached. P.W. 2 the agent of the plaintiff was asked about the writing on the bus and he stated that he understood that the bus was being operated as a part of the service run by the first accused and that that service is K.M.S. P.W. 3 the advocate for the plaintiff in the civil suit has deposed that at the time when he sought attachment of the bus he was not aware that the bus was actually being operated at that time by the K.M.S. service and it was only later that he knew that the bus was in the K.M.S. service. P.W. 9, the attestor to the Amin’s report has stated that the bus attached was a K.M.S. bus. All these would undoubtedly show that the bus was actually in the possession of K.M.S. Company. The mere entry in the B. register of vehicles Exhibits P-19 and P-20 the duplicate permit or Exhibit P-21 the certificate of insurance might at best show that the ownership of the bus is with the second accused and the permit for operating it as a stage carriage was also in his name, but that would not show that possession was with the second accused and it would not negative the case that it was being operated as part of the K.M.S. service and that the K.M.S. Company was in possession of the bus. There is absolutely no evidence and no justification for the finding by the learned Judge that the K.M.S. Company was in possession only as a servant or agent of the second accused, the defendant in the suit. No such case has been put forward by the prosecution and it is a pure conjecture. There is absolutely no evidence and no justification for the finding by the learned Judge that the K.M.S. Company was in possession only as a servant or agent of the second accused, the defendant in the suit. No such case has been put forward by the prosecution and it is a pure conjecture. Similarly the finding that the fourth accused who is proved to be a driver of the K.M.S. Company had been temporarily lent to the second accused and he was holding the bus as a servant of the second accused is also not borne out by the evidence in the case. If therefore on the evidence it is found that the bus was really not in the possession of the second accused the defendant in the suit, then the rule applicable will be only Order 21, rule 46 and the amin will have no jurisdiction to seize the vehicle which could be done only if it were in the possession of the judgment-debtor the second accused. So not only is the order of attachment illegal, the mode of attachment and seizure is also illegal and contrary to law. The next question that would arise for decision is as to what is the effect of such illegal attachment and whether removal after such an attachment would amount to theft. Theft is defined in section 378 of the Penal Code as follows: “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.” Commission of theft, therefore, consists in (1) moving movable property of a person out of his possession without his consent; and (2) the moving being in order to the taking of the property with a dishonest intention. The contention of the learned Counsel for the defence is that there is no proof in this case of any dishonest intention. We will nowconsider what ‘dishonest’ intention is under the Indian Penal Code. Section 24 of the Code says: “Whoever does anything with the intention of causing wrongful gain to one personor wrongful loss to another person is said to do that thing dishonestly.” Section 23 of the Code says: “‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally entitled. Section 24 of the Code says: “Whoever does anything with the intention of causing wrongful gain to one personor wrongful loss to another person is said to do that thing dishonestly.” Section 23 of the Code says: “‘Wrongful gain’ is gain by unlawful means of property to which the person gaining is not legally entitled. ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person, is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.” Taking these two definitions together, a person can be said tohave dishonest intention if in taking the property it is his intention to cause gain, by unlawful means, of the property to which the person so gaining is not legally entitled or to cause loss, by wrongful means, of property to which the person so losing is legally untitled. If the attachment is illegal then the Amin is not entitled to be in possession and in removing it from his possession no wrongful loss is caused to him. So also if really the bus cannot be attached and seized by the Amin then by retaining their own property the fourth accused or his master cannot be considered to have made any wrongful gain. Learned Counsel for the appellants has referred us to the decision in Sarasar Singh v. Emperor1. In that case in execution of a decree against one ‘S’ the Amin went to the spot and purported to attach the crops and he entrusted the same on kychit. The crops were later removed by ‘S’ and he was convicted under section 424, Indian Penal Code. It was found as a fact that the provisions of Order 21, rule 44 had not been complied with and so it was held that attachment was illegal, and the property does not pass from the judgment-debtor to the Court and removal of the crops by the judgment-debtor does not constitute an offence under section 424. Reference is made in that decision to an earlier case of the same High Court in the case of Gurdial v. Emperor2. Reference is made in that decision to an earlier case of the same High Court in the case of Gurdial v. Emperor2. It was held in that case: “It appears to me that where the process has a date fixed for its return under this section it cannot be executed after that date and any person, whose property is attached, after the date fixed for the return of the process, may when charged with a criminal offence under section 424, Indian Penal Code say that the property has never been lawfully removed from his possession and that therefore he can commit no offence by taking the property for his own use. This appears to be the view taken by the Calcutta High Court in Sheik Nasir v. Emperor3 and by the Madras High Court in Emperor v. Gopalaswamy4. In the latter ruling it is stated that there is no presumption that a distraint made for arrears of rent is legally made and if persons are charged with having dishonestly removed property to avoid it, the prosecution must prove that it was a legal distraint. In this case the prosecute on has failed to prove that there was a legal distraint. Thus in my opinion no offence under section 424 was committed.” The Rangoon High Court in the case in Mya Gyek v. Emperor5, has also taken the same view. In that case paddy belonging to two persons who were not the judgment-debtors but were only tenants under them were attached. Order 21, rule 46 lays down the procedure in such cases and where that mode had not been followed there is no legal attachment and conviction for dishonest removal of property attached is bad and would not amount to an offence. The decisions in Sarasar Singh v. Emperor1 and Gurdial v. Emperor2 were considered by the Supreme Court in the case in Teeka and others v. State of U.P.6. There the effect of a valid and legal attachment of movables was considered. The decisions in Sarasar Singh v. Emperor1 and Gurdial v. Emperor2 were considered by the Supreme Court in the case in Teeka and others v. State of U.P.6. There the effect of a valid and legal attachment of movables was considered. His Lordship Subba Rao, J., distinguished the two Allahabad cases and stated that the attachments in those cases were made in derogation of the provisions of the Civil Procedure Code and the attachment being illegal the property did not pass from the judgment-debtor to the Court and in such cases the Court cannot presume that the act of removal was done ‘dishonestly’ within the meaning of section 24, Indian Penal Code. The Supreme Court, therefore, should be taken as having approved the view taken in those cases and to have laid down the proposition that in cases where the attachment is illegal removal cannot be considered to be with a dishonest intention. We are in respectful agreement with the view taken in these cases and we hold that the attachment and seizure being illegal, the removal of the bus by the fourth accused cannot be said to have been done with dishonest intention and that he will not be guilty of the offence of theft or of robbery. It is not stated how the third accused has been found guilty of the offence of robbery. Conspiracy being found against there is no case that what the fourth accused did was in furtherance of any common intention entertained by him and the third accused. It was also pointed out that there is no allegation of any offence having been committed by the third accused, either in Exhibit P-4 or P-5 the complaint filed by the Amin and his conviction under section 353, Indian Penal Code is not sustainable. Likewise, there is no allegation that the fourth accused had done anything against P.W. 1 warranting his conviction under section 353, Indian Penal Code. In the result the appeal filed by accused 3 and 4 are allowed. Their conviction and sentence are set aside and they are ordered to be acquitted. Appeal filed by the State is also dismissed. M.C.M. ----- Appeal by accused allowed; Appeal by State dismissed.