JUDGMENT Sanker Saran, J. - The two applicants, Deo Suchit Rai and Bhola Ahir, were convicted by a Magistrate for an offence under s. 215, Penal Code The learned Sessions Judge dismissed their appeal. They came up to this Court in revision and I referred the revision to a Full Bench because of the divergence of opinion in this Court and other Courts on questions which will be set out presently. 2. One Bhaja Singh lost his buffalo and after looking for it in vain for two days, he met the two applicants who told him that his buffalo was stolen and if he chose to spend Rs. 150 the buffalo could be restored to him. On Bhaja Singh pleading poverty, the bargain was struck at Rs. 60. In pursuance of that agreement, Bhaja Singh paid Rs. 60 on 28-6-1945, and on 30th of June, the two applicants and another person returned the buffalo to Bhaja Singh. On behalf of the accused applicants there was a denial of the prosecution allegation. It was, however, argued in this Court, (1) that the accused himself might be the thief and then S. 215 would not be applicable, (2) that even though he was not the thief, he could not be convicted unless the prosecution were able to prove that "he did not use all means in his power to cause the offender to be apprehended and convicted of the offence." Upon these facts, two questions were referred to the Full Bench: (1) Can the accused be convicted under S. 215, Penal Code, if he himself was the thief ? (2) Can the conviction under that section be maintained unless there is evidence to prove that the accused did not use "all means in his power to cause the offender to be apprehended and convicted of the offence"? 3. Before embarking upon a discussion of the decided cases it is desirable to examine the terms of s. 215, Penal Code. (2) Can the conviction under that section be maintained unless there is evidence to prove that the accused did not use "all means in his power to cause the offender to be apprehended and convicted of the offence"? 3. Before embarking upon a discussion of the decided cases it is desirable to examine the terms of s. 215, Penal Code. It runs as follows: 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. It is the duty of Courts of law to interpret an enactment as it stands. There is 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 is 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 S. 216, Penal Code. 5. The case law on the point has not been uniform. There has been a conflict of authority. In my judgment, an actual thief or a person suspected to be the thief can be convicted under S. 216, Penal Code. 5. The case law on the point has not been uniform. There has been a conflict of authority. The trend of the recent decisions, however, seems to favour the view expressed above. The first case of our Court directly in point which has been referred to in many of the subsequent judgments is reported in ('01) 23 All. 81, Queen-Empress v. Muhammad Ali. It was a case where the accused were convicted of an offence under s. 380, Penal Code, for stealing four heads of cattle. They were further found to have taken Rs. 50 from the owner for returning two of the stolen cattle. For this offence, they were convicted under S. 215 Aikman J. held that Section 215, was never intended to apply to the actual thief, but to someone who being in league with the thief, received some gratification without at the same time using all the means in his power to cause the thief to be apprehended and convicted of the offence. Upon this view of the section, he set aside the conviction under s. 215. I might mention that there was no discussion of the interpretation of the section. 6. In a later case reported in Emperor Vs. Mukhtara, AIR 1924 All 783 a Bench of this Court considered ('01) 23 All. 81, Queen-Empress v. Muhammad Ali and did not accept the view expressed therein, In this case, two bullocks were stolen and Mukhtara was suspected of theft, At any rate, be was suspected of being in the know of who the thieves were. He told a panchayat that he would recover the bullock on payment of Rs. 30. He received the money and three days later he produced the bullock. Ryves, J. held that The inference is irresistible that he knew who the thieves were. There is a considerable amount of suspicion (to say the least of it) that Mukhtara himself was the thief, or one of the thieves. But the Magistrate did not take that point into consideration holding that according to the case in ('01) 23 All. 81, Queen-Empress v. Muhammad Ali the thief himself could not be convicted under S. 215. The Bench held that Mukhtara was rightly convicted under s. 215. But the Magistrate did not take that point into consideration holding that according to the case in ('01) 23 All. 81, Queen-Empress v. Muhammad Ali the thief himself could not be convicted under S. 215. The Bench held that Mukhtara was rightly convicted under s. 215. Of the two Judges, Ryves, J. expressed his doubt regarding the correctness of the decision in ('01) 23 All. 81, Queen-Empress v. Muhammad Ali Walsh, J. took a stronger line. He said: I am definitely of opinion that it is not good law and ought not to be followed. The learned Judge who decided it was probably embarrassed by the fact that there had been a conviction against the thief for both offences, But what he appears to have overlooked is this. Take the ordinary case of a man against whom suspicion is strongly entertained, as in this case. The complainant may be in doubt as to whether he is the guilty person or whether he is not, but he does not mind so long as the person he suspects agrees to return the animal for a consideration. Can it be seriously suggested that when the charge under S. 215 comes into Court, and the complainant confines his allegation as regards the theft to mere suspicion, the accused can be heard to say "The complainant is wrong to confine his allegation to mere suspicion. I am the thief. I have always been in a position to confess the theft, and if it suited my purposes, to provide the complainant with means for proving my guilt. But the High Court has decided that this section does not apply to the thief, and I being the thief it does not apply to me, and I am entitled to an acquittal. It seems to me that this would be a reductio ad absurdum" 7. In a later Bench case reported in Mangu Vs. Emperor, AIR 1928 All 22 a contrary view seems to have been taken. There are no references to any of the previous decisions in this case. Reliance is placed on certain general principles of law as expounded by Mayne in Edn. 4, of his work on Criminal law in India. Mr. Mayne was of the opinion that the section was not intended to apply to the actual thief. There are no references to any of the previous decisions in this case. Reliance is placed on certain general principles of law as expounded by Mayne in Edn. 4, of his work on Criminal law in India. Mr. Mayne was of the opinion that the section was not intended to apply to the actual thief. This view the learned Judges accepted and went on to say that "being in league with the thief" is a necessary fact to be proved. Having made these general observations, they went on to discuss the merits of the case. Upon the facts, the findings of the Court were that the prosecution failed because there was no evidence that the horses had been stolen and further there was certainly no evidence that Mangu, the accused, knew the criminal. Again, there was no evidence that he was making any attempt to screen that criminal from justice, or that he failed to use all means in his power to cause the offender to be apprehended. On the findings in this case, it cannot be said that the principles in Emperor Vs. Mukhtara, AIR 1924 All 783 were not followed or distinguished. As a matter of fact, Emperor Vs. Mukhtara, AIR 1924 All 783 was not considered by the Judges in this case. In a subsequent case reported in Ram Naresh Rai and Others Vs. Emperor , Mangu Vs. Emperor, AIR 1928 All 22 Emperor Vs. Mukhtara, AIR 1924 All 783 Mangu Vs. Emperor, AIR 1928 All 22 , Emperor Vs. Mukhtara, AIR 1924 All 783 8. In a Ramanand Teli and Another Vs. Emperor, AIR 1938 Patna 590 a single Judge followed ('01) 23 All. 81, Queen-Empress v. Muhammad Ali without any discussion. In a Ramanand Teli and Another Vs. Emperor, AIR 1938 Patna 590 Emperor Vs. Mukhtara, AIR 1924 All 783 was accepted in the following terms: The first contention raised was that the accused may be themselves thieves, and in that event S. 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 Vs. Mukhtara, AIR 1924 All 783 which, in my opinion, correctly states the law. 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 Vs. Mukhtara, AIR 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 under S. 215. In a Rangoon cage, ('41) 1941 R.L.R. 582 : 28 AIR 1941 Rang. 340 : 198 I.C. 766, King v. Nga Po Nyein this question was thoroughly considered by a Judge who followed Emperor Vs. Mukhtara, AIR 1924 All 783 which had dissented from ('01) 23 All. 81, Queen-Empress v. Muhammad Ali. In the course of the judgment, the learned Judge observed: It does, not appear to me to be correct to say as Pox C.J. said in ('07) 4 L.B.R. 199 (F.B.), Twet Pe v. King-Emperor that the section does not apply to the actual thief because he is under no legal obligation to bring himself to justice. All that the section says is that the person who takes the gratification shall be punished unless he uses all means in his power to bring the actual thief to justice. No doubt the wording of the section makes it apply in the majority of cases to offenders other than the actual thief. But cases may well occur, as was pointed out by Aston J.C. in ('93 - (1900) L.B.R. (P.J.) 226, Queen Empress v. Nga Tun Byu, where a thief having stolen cattle without a view to obtain money by restoring them to the owner, may offer to restore them for a gratification merely because he knows that detection is becoming imminent. 9. Having examined the terms of the section and the authorities on the subject with regard to question No. 1, I am of the opinion that the view in ('01) 23 All. 81, Mangu Vs. Emperor, AIR 1928 All 22 is not good law. I would, therefore, answer it in the affirmative. 10. With regard to question No. 2, there is a discussion in some of the cases referred to above on this point. Ram Naresh Rai and Others Vs. Emperor , Emperor v. Ram Naresh Rai Bajpai J. held that it was for the prosecution to prove that the accused did not take steps to have the accused apprehended. 10. With regard to question No. 2, there is a discussion in some of the cases referred to above on this point. Ram Naresh Rai and Others Vs. Emperor , Emperor v. Ram Naresh Rai Bajpai J. held that it was for the prosecution to prove that the accused did not take steps to have the accused apprehended. He expressed himself as follows: Where the accused merely undertakes the endeavour to trace out and restore the lost property on payment of some remuneration, then upon this circumstance alone the accused cannot be said to be guilty of an offence under S. 215, Penal Code, unless over and above that the prosecution proves that the property has been lost by the commission of an offence and that the accused is endeavouring to screen the offender from justice and is not using all means in his power to cause the offender to be apprehended and convicted of the offence which he has committed. 11. In Yusuf Mian Vs. Emperor, AIR 1938 All 440 Emperor v. Yusuf Mian Allsop J. after considering the authorities of this Court and of other Courts took a contrary view and observed: In Mangu Vs. Emperor, AIR 1928 All 22 Emperor v. Mangu the learned Judges certainly made use of expressions from which it might be inferred that they were of opinion that nobody could be convicted of an offence under S. 215, Penal Code, unless he knew who the offender was, but they were discussing the particular facts of that case and I do not suppose for a moment that they meant to lay down as a general rule of law that knowledge of the offender was a necessary ingredient of that offence. There is not one word in the section that suggests that such knowledge is necessary. The learned Judge further goes on to say: It has been held by two Judges of the High Court at Calcutta in Arman Ulla and Others Vs. Jainulla, AIR 1933 Cal 599 Arman Ulla v. Jainullah that the burden of proving under S. 215, Penal Code, that the accused person used his best endeavours or the means in his power to cause the offender to be apprehended and convicted of the offence is upon him. This also seems to be the conclusion to be drawn from the provisions of the Indian Evidence Act. This also seems to be the conclusion to be drawn from the provisions of the Indian Evidence Act. The clear meaning of the section in my judgment is that it is an offence to receive money for helping any person to recover property stolen or misappropriated and that there is an exception only in favour of a man who can show that he used all means in his power to cause the apprehension of the offender. Under the provisions of S. 105, Evidence Act, where a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any special exception or proviso contained in the Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances. 12. The Calcutta case in Arman Ulla and Others Vs. Jainulla, AIR 1933 Cal 599 Yusuf Mian Vs. Emperor, AIR 1938 All 440 Emperor v. Yusuf Mian laid down: Once the elements of an offence under S. 215 have been established by evidence the onus of proving that the person charged is entitled to the benefit of the exception referred to above is on the defence. 13. This question was also discussed in Ramanand Teli and Another Vs. Emperor, AIR 1938 Patna 590 , Ramanand Teli v. Emperor where the view was expressed that the saving clause in S. 215 is in the nature of an exception and the onus of proving that the accused is entitled to the benefit of exception is on him. 14. With regard to the question of onus of proof in such cases, the Full Bench case in Parbhoo and Others Vs. Emperor, AIR 1941 All 402 Parbhoo v. Emperor exhaustively deals with it. 14. With regard to the question of onus of proof in such cases, the Full Bench case in Parbhoo and Others Vs. Emperor, AIR 1941 All 402 Parbhoo v. Emperor exhaustively deals with it. This was a case which was heard by seven Judges and the majority view, which is the view of the Court, was that although the burden of proving the existence of circumstances bringing the case within one of the "exceptions" was on the accused, the prosecution would not be relieved of the burden of proving the entire "proceedings." In the words of Iqbal Ahmad, C.J. "the burden of proof, so far as the entire 'proceeding' is concerned, remains on the prosecution, even though the burden of the "fact in issue" pleaded by the accused is cast upon him by S. 105." The prosecution having tendered evidence regarding the theft of the buffalo and the demand of money for its restoration, the simple fact that the defence was called upon to prove was that the accused did all that lay in his power to cause the offender to be apprehended. 15. Thus with the view expressed in Yusuf Mian Vs. Emperor, AIR 1938 All 440 Emperor v. Yusuf Mian. I am in respectful agreement. In my judgment, it is not for the prosecution to prove the negative that the accused did not use all in his power to cause the offender to be apprehended. It is for the defence to establish the positive fact that they did all in their power to cause the offender to be apprehended. In effect, my view is that the decision in Ram Naresh Rai and Others Vs. Emperor Emperor v. Ram Naresh Rai was not correctly made. I would, therefore, answer question No. 2 in the affirmative. In the result, the application in revision should be dismissed. Yorke J. 16. I agree. The revision application should be dismissed accordingly. Raghubar Dayal J. 17. I agree the revision application be dismissed. 18. By the Court: The revision application is dismissed.