Ramanand Teli and Another vs Emperor

Rowland, J.—The two petitioners were convicted u/s 215, I.P.C., by a Magistrate of the First Class and their appeals to the Sessions Judge were dismissed.

The substance of the prosecution case was that the cycle of Kedarnath having been stolen, the accused tried to get Rs. 10 from Kedarnath as consideration for getting the cycle back for him. It was Bamanand who actually accosted the complainant, but) Moizuddin was with him, and the transaction is said to have been between the complainant and both the accused. Kedarnath haggled and would only pay Rs. 2 and in the sequel he did not get back his cycle. The case coming before a single Judge has been referred to a Bench for hearing as it gives rise to a point of law.

The first contention raised was that the accused may be themselves thieves, and in that event Section 215 should not be held to be applicable to them.

In the Allahabad High Court this view was at one time held; but the law is now held in that Court to be as laid down in Emperor v. Mukhtara A.I.R.1924. All. 783, which, in my opinion, correctly states the law. A person suspected of theft may, if the prosecution fails to prove the fact of theft by him, be convicted u/s 215. The second point is that the Section only applies "unless the accused uses all means in his power to cause the offender to be apprehended, etc." and we are asked to interpret this as making failure to use means to secure the apprehension of the offender as one of the ingredients in the offence which it is necessary for the prosecution to establish in order to obtain a conviction.

For this reference was made to Mangu Vs. Emperor, . The facts of that case appear to be rather different from those before us. The complainant had approached Manghu and asked him to give a clue for recovery of the missing property, and as the Judges pointed out,

there was no impropriety in either the request of Chhajju Singh, the complainant, or in the answer of Mangu that it was possible that a clue might he found but that the tracing would be a matter of money.

In the present case however it was the accused who accosted the complainant and told him that if he spent Rs. 10 his cycle could be recovered, that is to say, the very terms in which complainant was approached implied that there was expected to be no questions asked as to the actual offender and no attempt at his apprehension or conviction. On Kedar paying Rs. 2, Ramanand told him that the cycle would be restored to him on 7th February 1938, in the morning, but it was not done.

The circumstances of this case appear more analogous with those in Arman Ulla and Others Vs. Jainulla, , where the accused persons demanded money and realized it on the pretext of helping the complainant to recover a stolen boat.

The distinction between the ingredients of the offence u/s 215 and that u/s 214, which involves screening of an offender from legal punishment, is clearly brought out, and it is said that the saving clause is of the nature of an exception, and

once the elements of an offence u/s 213 have been established by evidence, the onus of proving that the person charged is entitled to the benefit of the exception is on the defence.

With that statement of the law we agree particularly where there has been a spontaneous demand by the accused of money in circumstances indicating an intention not to bring the offender to justice. Finally it was said that the sentence was too severe. But in this matter we do not feel disposed to interfere.

The application is, dismissed. The petitioners should surrender to their bail and serve out the remainder of their sentences.

Mohammad Noor, J.

I agree.