EMPEROR Vs. MOKHI

JUDGEMENT

(1.) These are appeals by the Local Government against the orders of acquittal of members of a criminal tribe who were charged under Section 22(2)(b), Criminal Tribes Act of 1924. The same point is raised in all the appeals which therefore may be conveniently disposed of in one judgment. It appears that on the night of 23rd- 24 May 1933 the accused were found absent from their houses. The village mukhia and the chaukidar visited their houses after 12 o clock at night and none of the accused were found in. The learned Sessions Judge of Bijnor who heard the appeals against the convictions of the accused by the Magistrate of Bijnor states in the course of his judgment: But more absence of a registered member under the Criminal Tribes Act from his house in the night is not an offence under the Criminal Tribes Act, as there are no rules made by the Local Government under Sub- clause (e), (f) or (h) of Clause 2 of Section 20 thereof whereby he may have been prohibited from leaving his house in the night for any purpose whatsoever so long as he did not go out of the prescribed area to which his movements had been restricted under the said Act. No such rules have been produced before me. The learned Government Pleader says that he could find no rules on the point that may have been made by the Local Government.

(2.) We are at a loss to understand how a Judge in the position of the learned Sessions Judge of Bijnor could have imagined that no rules had been framed or notified by the Local Government under Section 10, Criminal Tribes Ace. The Act would have been largely nugatory if rules had not been framed and notified under its provisions. Rules under Section 10 have, in fact, been framed by the Local Government and they are to be found in the Criminal Tribes Manual, a book which we think the learned Sessions Judge would have done well to consult when he was hearing a case which raised the interpretation of a section of the Criminal Tribes Act. The learned Sessions Judge accepted further the contention of the accused that so long as they were not proved to have absented themselves from their place of residence, that is, from the district within which by law they were confined they cannot be convicted under Section 22 of the Act. In other words, the learned Judge held that under the law the accused were entitled to absent themselves from their houses at night and they committed no offence under the Act if they did not absent themselves from their district. The learned Government Advocate has drawn our attention to the rules which have been framed by the Local Government under Section 10, Criminal Tribes Act. These rules enjoin that a registered member of a criminal tribe to whom the provisions of Section 10(1)(b) have been applied shall notify his place of residence or any change or intended change of residence and any absence or intended absence from his residence in the following manner : (c) absence or intended absence from residence: When the absence involves absence at night from his residence, by a report in person to the persons specified in Clause (2) of Rule 7(a) immediately after leaving and immediately after returning to his residence; and (b) immediately after arrival at and immediately before departure from every place at which he arrives or halts at night. By notification in the Government Gazette of 7 June 1920 these rules were notified to the criminal tribe of which the accused are members. It is proved that the accused were not in their houses on the night of 23rd-24 May 1933 and that they had not reported in accordance with the provisions of the rule referred to. The learned Government Advocate contended therefore that in these circumstances the accused were clearly guilty of an offence under Section 22, Criminal Tribes Act.

(3.) Learned Counsel for the accused on the other hand contended that the word "residence" in Section 22 and in the rules framed by the Local Government is synonymous with the place of residence and so long as it is not proved that the accused were absent from their place of residence that is the district within which they are confined they cannot be held guilty of an offence under Section 22. We have no hesitation in rejecting this {contention. The act uses both the terms "residence" and "place of residence" in a number of sections and in our view it is perfectly plain that the legislature did not intend these terms to be synonymous. In our opinion, a clear distinction is drawn in the Act and in the rules framed under the Act between "residence" and place of "residence." For example, special provision is made in the rules for the inspection of residences and one of the objects of inspection of residence according to the rules is to discover whether unusual facilities exist for the concealment of property, etc., in the residence. The word "residence" has been defined judicially and the definition is referred to in Wharton's Law Dictionary, in the case quoted in that dictionary. The word "resides" was defined as meaning the place where an individual eats, drinks and sleeps or where his family or his servants eat, drink or sleep. In our view there is no justification for the contention that the Government did not intend to draw a distinction between "residence" and "place of residence." If the argument of counsel for the accused were to be accepted it would to a very large extent render the provisions of the Criminal Tribes Act nugatory. As the learned Government Advocate has pointed oat, the Government have considered it necessary in the interests of law and order to confine certain members of Criminal Tribes to their houses during the hours of darkness. If the argument of Learned Counsel for the accused is well founded it would follow that despite very careful provisions which the Government have made for restricting the liberty of the members of the criminal tribe to which the accused belong, the accused would be permitted during the hours of darkness to roam at large throughout the whole area of Bijnor. In view of the object with which the rules were framed under the Act such a contention is upon the face of it quite absurd. In the result, we allow these appeals, set aside the orders of acquittal of the learned Sessions Judge and restore the order of conviction and sentence of the learned Magistrate.