B.P. Beri, J.
1. This is an appeal against acquittal by the State of Rajasthan directed against the judgment and order of the Munsif-Magistrate, Jalore, dated 30th September, 1964, whereby he acquitted respondents Khimla and Dalia of an offence under Section 215 of the Indian Penal Code.
2. Circumstances leading up to the present appeal briefly stated are these : Two bullocks of Khima son of Teja were stolen from village Kanana. Some persons followed the track of the bullocks and eventually discovered that they were stolen by Khimla son of Doonga, Dalia and Thania. The search party asked for the return of the bullocks, but Khimla son of Doonga, Dalia and Thania demanded Rs. 400/- for the restoration of the bullocks, and eventually a sum of Rs. 380/- came to be settled, and on the payment of the said amount the bullocks were returned on 26th August, 1962, in village Rama, where the three persons aforesaid resided.
A report was made to the Police Station, Balotra, A case under Section 379, I.P.C., was registered against the three persons. Another report was lodged by Head Constable, Police Station, Balotra regarding the accused having received a gratification for the purposes of restoring the stolen bullocks to the complainant which it claimed constituted an offence under Section 215 of the Indian Penal Code. The police submitted a report before the Mansif-Magistrate, Jalore against Khimla son of Doonga, Dalia and Thania under Section 215 of the Indian Penal Code. Thania was found to be absconding and proceedings were taken against him under Section 512 of the Code of Criminal Procedure, The prosecution examined 8 witnesses. The two accused denied the offence and adduced no defence evidence.
An argument was raised on behalf of the defence that as the two accused Khimla and Dalia were facing a trial under Section 379,1. P. C., regarding the theft of these two bullocks for the restoration of which they were charged under Section 215, I.P.C., because they received the gratification of Rs. 380/-, no case under Section 215, I.P.C., could be made out against them. Learned Magistrate relying on Kehr Singh v. Emperor AIR 1925 Lah 563, a case of the Lahore High Court, held that no case under Section 215 I.P.C., could have been put up against the accused persons because they were the thieves themselves. Aggrieved by this order of acquittal the State has come up in appeal.
3. The interesting and important question which arises for consideration is whether a person accused of theft can also be accused of an offence under Section 215, Penal Code if he takes gratification for the return of that very property which he had stolen or of which he was a suspected thief. I have given my anxious consideration to the question and have examined the authorities which have taken a divergent view. Two cases of the Lahore High Court, namely. 26 Cri L J 1121 : AIR 1925 Lah 563 and Godba v. Emperor AIR 1927 Lah 500 and one case of the Madras High Court In re Nalli Veeratbevan AIR 1914 Mad 121 (1) support the view taken by the learned Magistrate. The opposite view is taken by Deo Ruchit Rai v. Emperor AIR 1947 All 225 (FB) and the King v. Nga Po Nyein AIR 1941 Rang 340. The Patna High Court in Ramanand Teli v. Kmperor AIR 1938 Pat 590 has adopted the view of the Allahabad High Court in Emperor v. Mukhtara AIR 1924 All 783 and has evidently expressed an opinion which found favour in the later Full Bench decision of the Allahabad High Court. Kehr Singh's case, 26 Ori L J 1121 : AIR 1925 Lah 563 proceeds on the basis of the authority of Queen Empress v. Mohammed Ali (1900) ILR 23 All 81, which was also followed in Yeerathevan's case AIR 1914 Mad 121 (l) without discussion. Mohammad Ali's case (1900) ILR 23 All 81 was overruled by Mukbtara's case AIR 1924 All 783 by the Full Bench of the Allahabad High Court. I am in respectful agreement with the view taken by the Full Bench of the Allahabad High Court in Deo Suchit Rai's case AIR 1947 All 225 (FB) and it will be profitable to note the observations made by the learned Judges.
There in nothing in this section which should exclude an actual thief from liability under it if, in addition to committing theft, he also tried to realise money by a promise to return the stolen article. Such an act which is independent of the act of stealing constitutes a different offence. There is no reason why a thief be not punishable for an additional offence. The only reason for the view that a thief cannot be held guilty under this section is the fact that it is unnatural for a thief himself to use all means in his power to cause himself to be apprehended and convicted for theft. But the language of the section does not contemplate any exception. The earlier part of the section which really describes the ingredients of the offence does not lend support to the view that the thief cannot be prosecuted under this section. The latter part of the section to really in the nature of a provision by way of a concession in favour of one who helps, though for personal gain, both in recovering the stolen property, and in bringing the thief to book. In my judgment an actual thief or a person suspected to be the thief can be convicted under Section 215, Penal Code.
Section 215, Penal Code reads,-
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.
4. The exception engrafted in latter part of Section 215, Penal Code, seeks to cover a different situation where a person bona fide exerts himself for the purposes of tracing the thief or the Stolen property or both. To hold otherwise would amount to affording an umbrella to thieves, actual or suspected, a protection which is intended for the benefit of bona fide detectives who are covered by the latter part of the section.
5. The result, therefore, is that this appeal is allowed and the judgment of acquittal passed by the Munsiff-Magistrate, Jalore dated 30th September, 1964, is set aside. Since the case has been decided by the learned Magistrate on a preliminary point this case is remanded to the trial Court for deciding it in accordance with law.