V.P. Tyagi, J.
1. This appeal has been filed by accused Amar Singh and five others against the judgment of the Additional Sessions Judge, Churu, dated 26th May, 1965, convicting all the six appellants under Section 395 Indian Penal Code and sentencing each one of them to undergo one year rigorous imprisonment.
2. The facts giving rise to this case, briefly stated, are as follows:
3. A she-camel belonging to the complainant Amar Singh of village Gusaisar was taken to the jungle for grazing purposes from where it is said to have been stolen. The foot-prints of the thieves and that of the she-camel were, however, tracked by Amar Singh for tracing the stolen property and the thieves and by this process he reached upto the bara of accused Amarsingh in village Satara where he suspected his she-camel. He requested the residents of Satara to help him to recover the she-camel from the bara
It so appears that one other tracking party of Gusaisar that started from there after Amar Singh had left also reached Salara andthe members of this tracking party along with Amar Singh complainant surrounded the house and the adjoining bara of the accused Amar Singh, but before they could take a decision to enter the bara of the accused Amar Singh, accused alongwith one other person riding on the two she-camels including the one belonging to complainant came out of the bara Complainant Amar Singh thereupon tried to catch hold of his she-camel but it is said that accused Amar Singh opened fire at the complainant party and also used his sword to make good his escape from there.
A report was lodged of this incident at the Police Station, Ratan Nagar and a case under Section 395 of the Indian Penal Code was registered against 16 persons who helped Amar Singh accused in taking away the stolen she-camel from his bara. As a result of the investigation, a charge sheet was submitted against 16 persons in the court of the Magistrate First Class, Churu. After enquiry, the learned Magistrate committed all of them to the Court of Session to take their trial under sections 395 and 397 Indian Penal Code. The charge that was framed against the accused persons was that on 3rd of June, 1961, at about 8.00 p.m. they committed dacoity in village Satara by forcibly taking away the she-camel belonging to Amar Singh complainant and while committing that dacoity the accused used deadly weapons like sword, knife and pistol and caused simple injuries to Amar Singh, Kushal Singh and Uma. Some- of the accused persons were also charged for offences under sections 412 and 414 Indian Penal Code for having dishonestly receiving the stolen property, namely, the she-camel and they also voluntarily assisted in concealment of the she-camel.
4. All the accused denied the charge, and Amar Singh accused pleaded that this false case had been foisted on him by Chand Singh Sub-Inspector of Police who was a Head Constable along with him when he was in service and since then he was bearing enmity against him
5. The prosecution produced as many as 40 witnesses in this case. The learned Judge found that the present appellants were guilty of an offence of committing dacoity by taking away the she-camel from the bara of accused Amar Singh on the 3rd June. 1961 and therefore he convicted the present appellants for an offence under Section 395 Indian Penal Code against which this appeal has come before this Court.
6. Learned counsel on behalf of the appellants has not challenged the finding of fad regarding the removal of the she-camel by Amar Singh accused and his colleagues from his bara at village Satara The only contention raised by learned counsel is that the complainant had no right to forcibly take away the she-camel from the possession of the accused appellants as the thieves had effected their retreat with the she-camel after the theft was committed by them and the stolen property was brought to their ownhome in village Satara. In these circumstances, it is urged that even if it is held that the accused persons forcibly took away the she-camel by not permitting the search party and the complainant to snatch it away from their possession, it cannot be said that they did commit any offence.
On the contrary, according to learned counsel, the force used by the accused persons was in the right of their private defence in protecting the property over which they had a complete domain and it could not be taken away from their possession by any other means except by taking recourse to the assistance of the public authorities. In this connection, my attention has been drawn to the provisions of Section 105 of the Indian Penal Code which lays down that the right of private defence of property against theft continues till the offender has effected his retreat with property or either the assistance of the public authorities is obtained, or the property Has been recovered.
7. In this case, it is urged that after accused Amar Singh had effected his retreat and went with the stolen property to his own bara in village Satara, the right of private defence of property against theft which was available to the complainant party ceased to exist and therefore the complainant and his party could not have interfered with the possession of the accused party without taking recourse to the public authorities. In this connection, learned counsel for the appellants has placed reliance on Mir Dad v. Emperor, AIR 1926 Lah 74, Punjab Rao v. Emperor, ILR (1945) Nag 881 = (AIR 1945 Nag 269) and State v. Sidhnath Rai, AIR 1959 All 233. Learned counsel appearing on behalf of the State, on the contrary, drew my attention to the case decided by the Nagpur Judicial Commissioner in Jarha v. Surit Ram. (1907) 3 Nag LR 177.
8. From the perusal of Section 105 Indian Penal Code it is clear that the duration of the right of private defence of property against theft continues (1) till the offender has effected his retreat with property, or (2) the assistance of the public authorities is obtained, or (3) the property has been recovered. The primary object of this provision of the law appears to be that the owner of the stolen property may not be deprived of it when the same may be recovered by the owner by using force against the thief but this right of using force is subject to the aforementioned three conditions
9. Learned Deputy Government Advocate urged that even if the offender has effected his retreat with the property the owner has a right to recover it by using force as the third condition permits the continuance of this right till the stolen property is recovered, and it is in support of this proposition that he has relied on Jarha's case. (1907) 3 Nag LR 177.
10. In (1907) 3 Nag LR 177 it has been held that if A runs away with B's watch. B may chase him until he effects his retreat,but the right of self-defence does not end with his escape. If B sees A the next day, the next month or the next year, wearing the stolen watch, B may forthwith seize A and recover his watch, using for the purpose as much force as the case allows, and if a policeman be found at hand, B's proper course would be to hand over A to him and let him recover his watch. But B is not bound to put off the capture of A until he can find assistance of the public authorities.
Again, suppose on a day after the theft B sees his watch lying on a table in a house or a garden, and if he can get the assistance of the police, without losing sight of it, no doubt he would be bound to do so, but he would be under no legal obligation to risk a further loss or removal of the stolen property for the purpose of having recourse to the public authorities, and if the circumstances are such that immediate seizure seems to offer the only reasonable prospect of recovery, B is entitled to enter the house or garden and recover the watch.
11. The proposition laid down in Jarha's case, (1907) 3 Nag LR 177 has not been followed in later cases. In Mir Dada's case, AIR 1926 Lah 74, two learned Judges in their separate judgments expressed the view that the right of private defence of property subsists as long as the offender has not effected his retreat with the property, and as soon as the offender has completed his retreat the right ceases Le Rossignol, J. also observed that if serious disorders are to be avoided the right of private defence must be strictly confined within the limits fixed by the statute. Learned Fforde, J. while dealing with the illustration which was dealt in Jarha's case, (1907) 3 Nag LR 177 made the following observations :
'If the thief has effected his retreat with the property or if the assistance of the public authorities has been obtained, or if the property has been recovered, the owner of that property has no right to proceed with violence against the thief. To take the illustration given in the authority referred to (1907) 3 Nag LR 177, if A runs away with B's watch, B may chase him and seize his watch from him, using for that purpose such violence short of inflicting death as may be necessary for the purpose of recovering of the property stolen. But if B fails to capture A and recover his watch, his right to recover the article by violence has ceased Similarly, if instead of pursuing A, B invokes the aid of a policeman for that purpose and the policeman captures A, B cannot intervene with violence for the purpose of recovering his article: and, again, if B by any means, whatsoever, recovers his watch, he cannot then proceed to use violence to the thief.'
12. It has been specifically observed in the above passage that if B fails to capture A and recover his watch his right to recover the article by violence has ceased. From this it is clear that the learned Judge means to say that if the offender has effected his retreat the right to use violence by the owner, ceases. This view has been followed again by the Lahore High Court in Rakhia v. Emperor, AIR 1934 Lah 595 wherein it has been observed that if the thief runs away after leaving the property, the right of private defence comes to an end and the owner would not be justified in pursuing him and assaulting him. Allahabad High Court has also adopted the same view in AIR 1959 All 233.
13. It is contended by learned counsel for the State that Section 105 Indian Penal Code also envisages that the right continues till the property is recovered from the possession of the thief and his further contention is that the primary object of giving this right of private defence to the property is that the stolen property must be recovered from the illegal possession of the thief and, therefore, even if the thief has reached his home with the property and if the chasing party or the owner in the hot pursuit finds the thief with the stolen property even in his house he has a right to snatch the property from the possession of the thief by using necessary violence even if he had taken shelter in his own home because his home should not be treated as a citadel for him.
This argument of learned counsel brings me to the real meaning of the phraseology used by the Legislature in Section 105 'till the offender has effected his retreat with the property'. 'Will it mean the disappearance of the thief after an unsuccessful pursuit by the owner of the property? In my opinion, the plain meaning of the words used by the Legislature is that the right of defending the property would come to an end when the offender has finally succeeded in finding an escape from the hot chasers. It will depend on the circumstances of each case as to when the offender can be said to have finally escaped from the hot chase of the searching party. In some cases it is possible that the offender may be chased up to his own house, but it is very doubtful if the pursuers in that event shall have a right of forcible entry in the of-fender's house. In such a case it shall, in my opinion, be taken that the offender has successfully effected his retreat and the rights of private defence came to an end
14. Another question yet remains to be answered and it is as to how the third portion of the clause 'that the right continues till the property is recovered' shall be interpreted. In my opinion, the third condition that 'the right continues till the property is recovered from the offender' is not independent of the first condition, namely, 'till the offender has effected his retreat with the property.' In Jarha's case (1907) 3 Nag LR 177. Justice Rossignol's observations referred to above were based on the apprehension that if such a liberty is given to the owner so as to use violence even after the offender has successfully effected his retreat for recovering the stolen property then serious disorders are likely to arise and therefore the law makers have put a restraint on this private defenceto recover the stolen property from the offender till one of the conditions as mentioned above is completed.
There is no doubt that this view which has been consistently taken by the Courts is likely to benefit the offenders in certain circumstances, but this consideration cannot guide the Courts to interpret the statute differently from what it obviously means. 1 am, therefore, inclined to agree with the view taken by the Lahore, Nagpur and Allahabad Courts while interpreting the clause 'till the offender has effected his retreat with the property' and hold that the complainant in the instant case had no right to forcibly take possession of the she-camel from the accused party after the accused had reached his home with the stolen property and if the accused party by using force succeed in finding an escape with she-camel from their bara they cannot be said to have committed any offence in the eye of law. In this view of the matter, the conviction of the appellants cannot be sustained.
15. The appeal of the appellants is,therefore, allowed. All the appellants are acquitted of the charge under Section 395 IndianPenal Code and the sentence awarded to eachone of them is set aside. They are on ball,and they need not surrender to it.