IN RE: SEENI THEVAR, THANGA THEVAR Vs. STATE

JUDGEMENT

(1.) PERIYATHAMBI (P. W. 1) had tied two of his bulls in front of his house on the night on 1st September, 1969. When he woke up at 4 a.m. he found these bulls missing. He searched for them, but could not trace them. On 4th September, 1969 with D. W. 2 he went to the shandy in Paramakudi. The first Petitioner, who was present there, asked P. W. 1 as to why he had come to the shandy. P. W. 1 told him what had happened. The first Petitioner offered to help him, Both of them proceeded to Nallakurichi and there they met the second Petitioner. The first Petitioner told P. W. 1 that the bulls could be recovered on payment of Rs. 500. This amount was reduced to Rs. 300 by bargain. P. W. 1 returned to Paramakudi and got the amount from P. W. 5 through P. W. 3. He then gave this amount to the first Petitioner. The latter in turn passed it on to the second Petitioner. The time was 6 p.m. The second Petitioner, accompanied by the first Petitioner, brought the bulls at 9 p.m. and handed them over to P. W. 1. With the bulls P. Ws. 1 and 2 returned to Paramakudi and informed P. W. 3 as to how they got them. P. W. 4 who was then present told them that on the night of 1st September, 1969, the Petitioner had asked him the way to Samuthram and Varunthi and that he showed the way. P. W. 1 gave the report Ex. P -1 in the police station on 5th September, 1969. P. W. 6 investigated the crime and charged the Petitioners under Section 215 of the Indian Penal Code. P. Ws. 1 to 6 deposed to the above facts. When questioned by Court, the Petitioners denied in toto the receipt of any account from P. W. 1 as deposed to by him. Believing P. W. 1, the learned Magistrate convicted the Petitioners under Section 215 and sentenced them to undergo R. I. for 6 months. On appeal, the learned Sessions Judge, Ramanathapuram, confirmed it. The Petitioners contend that the convictions are not correct.

(2.) THE Petitioners contend that they have been treated as thieves by the prosecution and that as such they cannot be convicted under Section 215 of the Indian Penal Code. 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 the Indian Penal Code, unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence, commits an offences under Section 215 of the Indian Penal Code. In Nalli Veera Thevan, In re., : (1914) 26 M. L. J. 598 Ayling, J., held that S. 215 I. P. C, is not intended to apply to the thief but to someone, 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 Kudumban, In re. 1 Weir Crl. Rulings, 196 where a Bench of this Court held that the Section would not apply to the case of the offender himself taking gratification. The learned Judges observed:

(3.) THE defence is one of total denial. The conviction under Section 215, I. P. C. is, therefore, correct. The same is confirmed. The substantive sentence is reduced to the period already undergone and in addition a fine of Rs. 200 is imposed on each of them. Time for payment of fine, one month. In default of payment of fine, each of them shall suffer R. I for six weeks. Out of the fine, if collected Rs. 300 shall be paid to P. W. 1.