1. These are two connected applications in revision by three men who were convicted of offences under Section 215, I.P.C. and sentenced each to rigorous imprisonment for a period of six months and a fine of Rs. 25. According to the judgment of the lower Appellate Court there is evidence that a bullock was stolen from the house of one Sita Barai and that the applicants agreed to take a sum of money to return the bullock. There is also evidence that they did in fact take the complainant to the jungle where they pointed out the bullock tied to a tree. It is urged in these circumstances that the facts do not warrant a conviction under Section 215, I.P.C. It is said in the first place, that there is no proof that the bullock was stolen because the evidence is only to the effect that the bullock was tied up during the night and was missing next morning. It is urged that the applicant should not have been convicted unless it was proved as a positive fact that the bullock had been stolen. The words of the section are:
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.
2. The question therefore before the Courts below was whether the owner of the bullock had been deprived of it by an offence punishable under the Indian Penal Code. It is argued that these words mean that the bullock must have been stolen. Learned Counsel suggests that 'deprive' means 'taken out of the possession of.' I do not think that any such narrow interpretation can be placed upon that word. To deprive a person of any article may be either to take it away from him or to prevent him from getting possession of it if he would have! done so in the normal course of events. In the circumstances of this case, even if the bullock did stray at night, although there is no reason for thinking that it did, yet the person who tied it up in the jungle was, in my opinion, depriving the owner of possession of it because normally a bullock which went away would return to its owner in the ordinary course and by being tied up it would be prevented from so doing. Learned Counsel has suggested that a person who commits criminal misappropriation does not deprive the real owner of possession of property. I cannot see that there is any force in this contention and there is no ruling which supports it. A reference has been made to the cases in Sharfa v. Emperor (1914) 1 A.I.R. Lah. 551, Bageshwari Ahir v. Emperor (1932) 19 A.I.R. Pat. 241 and Mangu v. Emperor : AIR1928All22 in which learned Judges have remarked that it must be proved that the deprivation of pos. session was the result of an offence under the Indian Penal Code and that there can be no inference merely from the disappearance of cattle that any such offence was committed. These were all cases in which the stolen cattle were never recovered and very likely it was not a fair inference in any of these cases that the cattle had ever been stolen or misappropriated. They had strayed and they were never found and there was therefore nothing whatsoever to suggest that any person had ever taken possession of them. The facts in the present case are entirely different. The bullock disappeared and was found three days later tied in the jungle where it was pointed out by the applicants.
3. It seems to me that the Courts below were entitled quite fairly to make the inference that the bullock had either been stolen or misappropriated dishonestly by some person. In either case some offence was committed and that offence prevented the owner from retaining or obtaining possession of his property so that he was deprived of possession of it. Reference has also been made to the case in Ram Narain Rai v. Emperor : AIR1931All710 . It was certainly said in that case in which the facts were not dissimilar, that criminal misappropriation could not be presumed. I do not think however that in the present case there is any question of presumption. It is a question of inference from the facts and what inference may properly be made is not a question of law but a question for the conscience of the person who is supposed to make the inference. I think therefore that it cannot be said that the Courts below were so utterly wrong in coming to the conclusion that the owner was deprived of possession of the bullock by means of an offence under the Indian Penal Code that this Court should interfere in revision. It appears from the judgment that the applicants themselves promised to return the stolen bullock. It was not a case where they merely said that they would make their best endeavour to discover where the bullock was, nor a case where they ultimately failed to discover the property. From the evidence it appears that as soon as they received their money they took the owner direct to the jungle and pointed out the bullock tied up to a tree.
4. The second argument is that there is nothing in the record to show that the applicants had not used their best endeavours to cause the offenders to be apprehended and convicted of the offence. The applicants, I am informed, did not make any defence on this particular charge in the sense that they gave no explanation of how they discovered the bullock and there was nothing to show one way or the other that they knew or did not know who the offender was. In this connexion reference has again been made to Mangu v. Emperor : AIR1928All22 . I should like to point out that much inconvenience and error is caused by attempts to regard the dicta of learned Judges as statements of law. In Mangu v. Emperor : AIR1928All22 the learned Judges certainly made use of expressions from which it might be inferred that they were of opinion that nobody could be convicted of an offence under Section 215, I.P.C. unless he knew who the offender was but they were discussing the particular facts of that case and I do not suppose for a moment that they meant to lay down as a general rule of law that knowledge of the offender was a necessary ingredient of that offence. There is not one word in the section that suggests that such knowledge is necessary. It may well be that a person who receives money for discovering stolen property may in the course of his investigations obtain information which if followed up would lead to the apprehension of the offender. If he withholds that information from the proper authorities it is obvious that it cannot be said that he used his best endeavour to cause the offender to be apprehended. The remarks of learned Judges should be read in connexion with the circumstances which they are discussing and the principles of law which they intend to lay down can be inferred only from the effective decisions at which they arrive.
5. It has been held by two Judges of the High Court at Calcutta in Armanulla v. jaimulla : AIR1933Cal599 that the burden of proving under Section 215, I.P.C. that the accused person used his best endeavours or the means in his power to cause the offender to be apprehended and convicted of the offence is upon him. This also seems to be the conclusion to be drawn from the provisions of the Evidence Act. The clear meaning of the section in my judgment is that it is an offence to receive money for helping any person to recover property stolen or misappropriated and that there is an exception only in favour of a man who can show that he used all means in his power to cause the apprehension of the offender. Under the provisions of Section 105, I.P.C. where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any special exception or proviso contained in the Code or in any law defining the offence is upon him and the Courts shall presume the absence of such circumstances. I therefore hold that the burden of proving that they had used jail means in their power to bring about the apprehension of the offenders was upon the applicants in the present case and it is quite clear that they never made any attempt to discharge that burden. The application is rejected.