1. There have been many hearings in this case and I have spent many anxious hours to discover whether the judgment of the Joint Magistrate, so severely shaken by the learned Judge, arrived in this Court moribund or entirely dead. The reading of the evidence has not left a pleasant impression; so I tried, as best I may, to hear heart-beats in the body produced in this Court, but I am afraid that none could be heard.
2. Manni Lal Avasthi who and whose counsel boasted that he had many respectable friends in Cawnpore, has been bound over by the Joint Magistrate of Cawnpore under Section 110. A long table of reasons for the order was given why the applicant was required to show cause. The learned Judge, however, has refined the matter so much that very little remains to support the reasons for the notice. The Judge has abandoned all points and on p. 18 ( reference to paging shall be made to the copy of the judgment on the record) the Judge has pronounced:
In short I think that ultimately the case against Manni Lal must rest solely on the fact of harbouring dacoits.
3. It is difficult to understand the Judge's idea as to the reason why Manni Lal harboured dacoits, because the Judge was of opinion that he was not proved to be a receiver of stolen property. It may be wondered whether Manni Lal has a desire for society of men of different classes in life and just as his pride is that he has highly respectable friends in Cawnpore he may be suffering from a penchant for the society of dacoits. Ordinarily one would have thought that the harbouring of dacoits implied the receipt of stolen property. Unfortunately, the Judge has rested his order on a ground of doubtful legal authority. Under Section 110 the harbouring of dacoits is not given as one of the reasons for calling upon a man to give security for good behaviour. What is stated in (c) of Section 110 is that the accused is alleged habitually to protect or harbour thieves. The learned Judge has considered the law on the subject and has come to the conclusion that none of the rulings quoted by him applies. If so, the matter rests with this Bench to decide in accordance with the wording of the Act. The Judge's opinion was that a thief would include a dacoit, because a dacoit is after all, a thief who commits theft with violence. At the same time, with his predominant sense of refinement the Judge exempted from this class, a robber who commits robbery through extortion. So, according to him the word 'thief' would include a dacoit or a robber of one hue, while it would not include a dacoit or a robber of another hue. These distinctions without a difference have to be indulged in when more is sought to be read into a statute than exists on the face of it. His argument as to stolen property being applicable to property whose possession is obtained by dacoity is difficult to understand. Stolen property is specifically defined in Section 410 as property, possession whereof has been transferred by crimes other than dacoity and the possession of such property is punishable under Section 411, I.P.C. When property, possession whereof has been transferred by the commission of dacoity, is contemplated there is a distinct Section 412. There only the words 'stolen property' as defined in Section 410 are not used, but further explanation is given that the possession must be of such property as the possessor thereof knew or had reason to believe to have been transferred by the commission of dacoity. This differentiation between Sections 411 and 412, works in a way just the opposite to the argument advanced by the Judge. It indicates that when only the words 'stolen property' are used, they do not mean property transferred by the commission of a dacoity.
4. It is always interesting to discover how legislation as to particular sections of a certain code came into effect in order to understand the meaning thereof. Dacoity is a very serious crime and therefore the attempt to commit it, even the preparation to commit it, and being member of a gang of dacoits, are all separately made punishable under different sections of the Indian Penal Code. At the time of the framing of the Code it was overlooked that dacoits might be helped by men honest to the outside world, so well expressed in the vernacular as 'safedposh,' who though not joining the dacoits or belonging to their gang in the sense of actively participating in the crime, gave shelter to them at the time when they needed it to escape pursuit. For that reason in 1894 a, penalty was provided for harbouring robbers or dacoits. This was done by the enactment of S 216-A, I.P.C., by Section 8 of Act No. 3 of 1894. When the Criminal Procedure Code was enacted in 1898, the previous Code was of Act No. 10 of 1882. In the corresponding Section 110 of this Act no provision was made for calling upon a man who made a habit of harbouring to enter into security. At that time, in 1898, penalty for the harbouring of robbers and dacoits was provided for a few years previously and there remained provision to be made to make it dangerous to harbour thieves. There was a substantive offence in 1898 of harbouring only robbers or dacoits, because possibly it was not thought right to make it an offence to harbour a thief; a theft has not such notoriety as robbery or dacoity which on its occurrence would be widely known and every honest man will be warned against giving shelter to persons taking part therein. The same notoriety would not attach to a theft as to a dacoity and therefore it was presumably considered unfair to make the harbouring of a thief an offence. At the same time, if a man made a habit of harbouring thieves, it would he possible to presume that he did so with full knowledge of the habits of life of his friends and visitors. So provision was made in Section 110 when it was amended by Act No. 5 of 1898 to bring within its scope a man who made a habit of harbouring thieves. A consideration of these different stages of legislation leaves no doubt in my mind that the legislature did not desire that the provisions of Section 110 should be applied to a harbouring of dacoits, the intention being that such a man should be dealt with under the substantive provision of the Indian Penal Code, i.e. Section 216-A.
5. I recognize the great pains taken not only by the Sessions Judge but by the Joint Magistrate in the conduct of these proceedings and it is not without regret that T. have come to the conclusion that I have arrived at; but possibly these proceedings will be a warning to the prosecuting agency not to adopt the course of taking action under Ch. 8 through the fear that the bolder action of prosecuting for a substantive offence may be likely to fall.
6. I allow the application. The bonds and securities taken from Manni Lal shall be discharged.