Biswanath Dubey vs Gharbigan Chamar

Meredith, J.—The petitioner Biswanath Dubey was convicted u/s 215/511, Penal Code, and sentenced to undergo three months'' rigorous imprisonment and to pay a fine of Rs. 50, in default to undergo a further month''s rigorous imprisonment. Out of the fine, Rs. 30 was directed to be paid to the complainant, a village chaukidar, by way of compensation. Section 215, Penal Code, runs as follows:

Whoever takes or agrees or consents to take any gratification under pretence or on account of helping any person to recover any moveable property of which he shall have been deprived by any offence punishable under this Code, shall, unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

And what the petitioner has been convicted for is an attempt to commit this offence. After his conviction he appealed to the learned Sessions Judge of Shahabad who dismissed his appeal. The facts of the case are that on 20th January 1939, the bullock of the complainant chaukidar disappeared; evidently his first impression was that it had strayed, because he took no steps to lodge any information until 27th January, a week later. Having failed to find it, he lodged a saneha at the police station; nothing more happened until 23rd February, when, as has been found by the Courts below, and as must now be accepted, the petitioner came to the chaukidar and offered to recover the bullock if paid Rs. 25. The complainant refused to accept these terms and, it is said, a panchayati was called, but still the petitioner, though admitting his previous offer, did nothing.

On 8th March the petitioner filed a petition before the Subdivisional Officer to the effect that the chaukidar was harassing him with regard to the recovery of his bullock; and finally, on 10th March the chaukidar. filed the complaint which has led to the petitioner''s conviction.

I am of opinion that this conviction cannot possibly be sustained. Section 215, which is a Section rarely used, aims primarily at professional trackers and other persons who, being usually in league with thieves or well aware of their proceedings, obtain money for recovery of stolen property without making any effort to bring the offenders to justice.

The Section has three essential ingredients: first, taking or agreeing or consenting to take any gratification under pretence or on account of helping any person to recover any moveable property; secondly that the owner of such property must have been deprived of it by an offence punishable under the Penal Code; and thirdly that the person in question, having taken or agreed to take the gratification, must not have used all means in his power to cause the offender to be apprehended and convicted of the offence. It is a peculiar Section inasmuch as once it is shown that the person charged has taken or agreed to take money, which in itself is in no way wrong or illegal if the intention is honest, then the completion of the offence follows not necessarily from any further overt act but merely from an omission, namely as the Section puts it, the failure to use all means in his power to cause the offender to be apprehended and convicted. I doubt the Courts below have fully appreciated this feature of the Section.

The Magistrate at least appears to have considered that the offence had something to do with taking an illegal gratification (an expression which he has used twice over). Suffice it to say, the Section has nothing to do with any illegal gratification. Gratification may be taken, but it is in no way illegal if the bargain is honestly carried out: it is merely payment for work done.

Where an offence is of this peculiar nature, I find it somewhat difficult to understand exactly what will constitute an attempt to commit it; a question upon which there appear to have been differences of judicial opinion in the past. I do not propose to go into that difficult question. It is unnecessary to do so, because the second ingredient, which I have spoken of, is not present and the conviction must be set aside on that ground.

It is nowhere expressly found by the Courts below that the complainant''s bullock was actually stolen, that is to say, that he was deprived of it by an offence punishable under the Penal Code. That this is an essential ingredient in the offence has been laid down by this Court in Rageshwari Ahir v. Emperor AIR (1932) Pat 241. That was really a stronger case than the present one. There the money had actually been taken, and, though there was no direct evidence of theft, the Courts below had at least considered all the'' circumstances and come to a finding by inference that there had been a theft. In the present case however, the necessity of such an express finding does not seem to have been appreciated.

There is no finding and no examination of the evidence, if any, on which such a finding could be based. As I have already indicated, the circumstances, on the contrary, appear to show that the bullock might have strayed. There is no assertion that it was tied up'', or shut up in any enclosure which was opened, and, in short, there appears to have been nothing upon which an express finding, that this was a case of theft, could be based. There does not appear to be any assertion that the petitioner himself ever stated that he actually knew that the bullock had been stolen, and who had stolen it. In the absence of this finding and of evidence to support such a finding, the conviction cannot stand. The conviction of the petitioner and his sentence, and the order for payment of fine and compensation, are therefore set aside, and he will be acquitted. He must now be discharged from his bail.