1. The accused in C. C. No. 280 of 1962, on the file of the Sub-Divisional Magistrate of Pudukottai, is the petitioner. He was convicted under Section 215, I. P. C. and sentenced to pay a fine of Rs. 150, in default, to undergo rigorous imprisonment for two months. The conviction and sentence were confirmed by the learned Sessions Judge, Tiruchirapalli, in appeal, and the accused has tiled the present revision case.
2. The prosecution case against the accused is briefly this, P. Ws. 1 and 2 are brothers-in-law. P. W. 2 lives in a village called Theethanipatti, P. W. 1 had gone to Theethanipatti in a bullock cart and stayed there for some days. His bulls were stolen on the night of 12-5-1982. On the morning of 13-5-1982, P. W. 1 and his brother-in-law, P. W. 2 went in search of the missing bulls. On the way they met the accused and informed him about the theft. The accused thereupon assured P. W. 1, that he need not fear and that if Rs. 100 were paid to him, the bulls would be restored. P. Ws. 1 and 2 returned to their house saying that they would consider and let him know later. In the afternoon of 13.5-1982, P. Ws. 1 and 2 went to the house of the accused at Ariandi, and gave Rs. 50 to him saying that it was all the money they were able to collect. P. W. 1 promised to pay the balance of Rs. 50 to the accused after the bulls were recovered. The accused then agreed to this course and received Rs. 50 from P. W. 1. Then he directed P. W. 1 to meet him that evening at Sakki-liankottaikadu with the balance of Rs. 50 when he would see that the bulls were restored to him, P. Ws. 1 and 2 went with the money in the evening to the place indicated above, but though they waited till 10 or 11 p. m neither the accused did appear, nor were the bulls restored. The next morning at Malaiyur village, they learnt that the bulls of P. W. 1 were in the police station at Karambakkudi. They went to the police station and found the bulls. P. W. 1 identified the bulls before the Sub-Inspector and told him what had happened. The Sub-Inspector recorded a complaint from him. The version as to how the bulls were traced is this. On 13-5-1962, at about midnight, the Sub-Inspector of police Karambukkudi arrested one. Uthiraju on suspicion on the Karambakkudi-Panukottai road with the bulls in his possession. These were the bulls which were identified by P. W. 1, the next morning at the police station. Uthiraju was convicted of theft subsequently by the Court. Thereafter, the charge-sheet was filed against the present accused under Section 215, I. P. C.
3. The accused's plea was that the allegations of P. Ws. 1 and 2 were totally false. P. W. 1 wanted to snatch away the properties of his elder sister and in that dispute the accused had interfered on behalf of the sister, in consequence of which there was enmity between him and P. W. 1. On account of this enmity the present false case had been filed against him. But no witness was examined by the accused to support his plea. Both the trial Court as well as the appellate Court accepted the evidence of P. Ws. 1 and 2 as to the incidents that happened on 13.5-1962, and rejected the plea of the accused that a false case was foisted on him. I have also gone through the evidence and I find that this conclusion has to be upheld.
4. Learned Counsel appearing for the petitioner urge that to constitute an offence under Section 215, I. P. C., the onus lies on the prosecution to prove that the accused had not used all means in his power to cause the offender to be apprehended and convicted of the offence. There was no such evidence on behalf of the prosecution in the present case, and therefore, the conviction of the accused is illegal. Section 215, I. P. C. reads thus:
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.
It is a matter of common knowledge that in several parts of India, persons of unscrupulous and anti-social conduct used to enter into league with thieves, especially cattle thieves, and extort money from the unfortunate owners, as consideration for restoring the missing property, but allowing the thieves to go scot-free, Very often, the illegal gain thus obtained is shared by both. This form of collection of money for recovering stolen property is known as 'Thuppukooli' in some of the districts in Tamilnad, like Madurai, Ramanathapuram and Pudukottai, A similar practice also seems to obtain in North India, and this is apparent from several cases under Section 215, I. P. C. found in the decisions of other High Courts. This practice was very widely prevalent in the pre-British days, and even now it has not died out,
5. Two important questions have come up before courts in regard to the interpretation of Section 215, I. P. C. One is whether that section will apply to the thief or whether it must be confined to a person other than the thief. In Nalli Veera Thevan, in re, 26 MLJ 598 AIR 1914 Mad 121 . Ayling J. held that Section 215, I. P. C. is not intended to apply to the thief but to some one, who being in league with the thief, receives gratification for helping the owner to recover the stolen property without at the same time using all the means in his power to cause the thief to be apprehended and convicted. There is also an earlier decision reported in In re, Kudumban 1 Weir Cr 106, where a Bench of this Court held that the section would not apply to the case of the offender himself taking gratification. This view was followed by Soma-sundaram J, in an unreported case of this Court in Cri. R. C. 1445 of 1949 (Mad) On the other hand, the Allahabad High Court in a decision of a Full Bench in Deo Suchit Rai v. Emperor AIR 1947 All 225 differed from the Madras High Court's view and held that the section would also apply to the thief. However in the present case, we are not concerned with this aspect of the matter as the person before the court is not the thief. Actually there is evidence that the thief was somebody else, who had been convicted by a court of law subsequently. We are concerned with the second point that has arisen out of the section, namely, whether that part of the section which reads,
Unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence.
is in the nature of the proviso or exception, or is an essential ingredient of the offence. If it is the former, then under Section 105 of the Evidence Act, the burden Will be on the accused to prove the exception. On the other hand, if it is an essential ingredient of the offence and not an exception to it, the onus will be on the prosecution to prove it. On this point, courts in India have differed in their views. In the decision already cited AIR 1947 All 225, the Allahabad High Court differing from an earlier decision of the same Court in Emperor v. Ramnaresh Rai ILR 54 All 55 : : AIR1931All710 and following certain decisions of the Calcutta High Court and Patna High Court, came to the conclusion that the onus of proof for this part of the section, was on the accused. In this Court, how. ever, in the case mentioned above, Crl. R. C. No. 1445 of 1949 (Mad), Somasundaram J. observed that the prosecution must lay ''the foundation suggesting an inference that the accused has not used all means in his power to trace the offender and till then, the onus-does not shift to the accused.
6. Even a careful consideration of the language of Section 215, it appears to me that it is not intended to create an offence, where a person bona fide receives some amount as remuneration for tracing out lost or stolen property. If that were the meaning to be given to the section, a private detective, who undertakes to trace stolen property, will be prima facie guilty of the offence, unless he is able to convince the court that besides attempting to recover the property, he also did everything in his power to bring the offender to book. The use of the word 'pretence' makes the offence analogous to obtaining money by false pretences, that is the offence of cheating. But as a alternative to this, there are also in the section the words 'on account of' implying that even where? there is no pretence, that is, where the representation is true, the offence can be committed. If we take the initial portion of the section, after excluding the words ''unless he uses' etc. and treat the initial portion as constituting the ingredients of an offence, it would mean that the law contemplates that even a private detective, who receives consideration bona fide for helping a person to recover stolen property, will commit an offence. Incidentally, under the terms of the section, the property could also be the subject of criminal misappropriation or of cheating. The more reasonable view which appeals to me is that this section is not intended to punish such bona fide persons, who offer to help the owner to recover property which he has lost by theft ; criminal misappropriation etc. It is intended, as mentioned earlier in this judgment, to deal with cases which are similar to collections in the nature of 'Thuppukooli' made by the persons who from the circumstances of their offer to help the owner, are expected to contact the thief, pay him a portion of the money on the understanding that he won't be exposed if he would release the concerned property to the owner. There is thus, besides the promise by the accused to recover the stolen property an implied association between him and the thief or the means on his part of discovering the thief and recovering the property, but without at the same time any undertaking on his part, to do what the law expects every honest citizen, to do in his situation namely to help in the prosecution of the person who has committed a cognizable and non-bailable offence like theft or an offence in regard to moveable property. For giving the section this significance-which in my view it is really interded to have-the first part has to be read in conjunction with the last part containing the words 'unless he uses all means in his power to cause the offender to be apprehended'. Therefore, the first part of the section itself is really intended to deal with persons who impliedly have means of contacting the offender and recovering the property, and who then under-takes to recover the property from the thief on payment of a sum which will serve to remunerate them and also 'square' up the thief. It is only when this state of affairs has been established by the prosecution, can the onus of proof be thrown on the accused person to prove the terms of the exception namely that he had used all means in his power to cause the offender to be apprehended and convicted of the offence'. These being facts within his know-ledge, the statute has placed the onus on him to establish them. Therefore, though it is clear that the clause 'unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence' is in the nature of a special exception or proviso, within the meaning of Section 105 of the Evidence Act, for which the onus of proof is on the accused, the juxta-position of this clause with the other ingredients of the offence specified in the first portion of the section, shows that the prosecution has initially to establish that the circumstances of the taking of the money were such that the accused received it without any intention of tracing the offender and bringing him to book, assuming he had the means of getting at the offender.
7. The exact nature of these circumstances must depend upon the facts of each case. For example, if a person who takes away the money is a professional private detective, who takes it only for his remuneration and who can be expected to assist the law in booking the offender, if in the course of investigation be contacts him, he will not be committing an offence under this section. It would not be proper to prose-cute him, and put him on his defence, to prove that he had used all means in his power to cause the offender to be apprehended. On the other hand, where a person has no such bona fide status, and demands a sum of money, out of all proportion to the legitimate expenses required for his reasonable remuneration for tracing out the stolen property, it will prima facie imply that the money was received also for 'squaring' up the thief and save him from prosecution, in the present case, the money demanded was Rs. 100, and the accused promised to produce the missing bulls before night fall. If his conduct had been bona fide, he would be expected to promise only to make a search for the missing bulls. Such search also would require time. His calm assurance that he would produce the bulls by night fall, shows that the accused knew or had the means of knowing the whereabouts of the offender. The large sum of money he took foe the purpose also shows that the bargain was that he would not take any steps to bring the offender to book, but pay some money to him, and ''square' him up.
The circumstances of the present case indicate that the accused, when he received the money and made the representation that he would recover the property stolen before night fall, had the means of getting at the offender and that he had also no intention to bring him to book, while restoring the property. When confronted with this evidence, he denied it in toto. The conviction under Section 215 I.P.C. is, therefore, correct. The sentence is not excessive. The revision case is dismissed.