Dalal, J - (1.)There have been many hearings in this case and I have spent many anxious hours to discover whether the judgment of the Joint Magistrate, so severely shaken by the learned Judge, arrived in this Court moribund or entirely dead. The reading of the evidence has not left a pleasant impression; so I tried, as best I may, to hear heart-beats in the body produced in this Court, but I am afraid that none could be heard.
(2.)Manni Lal Avasthi who and whose counsel boasted that he had many respectable friends in Cawnpore, has been bound over by the Joint Magistrate of Cawnpore under Section 110. A long table of reasons for the order was given why the applicant was required to show cause. The learned Judge, however, has refined the matter so much that very little remains to support the reasons for the notice. The Judge has abandoned all points and on p. 18 ( reference to paging shall be made to the copy of the judgment on the record) the Judge has pronounced: In short I think that ultimately the case against Manni Lal must rest solely on the fact of harbouring dacoits.
(3.)It is difficult to understand the Judge's idea as to the reason why Manni Lal harboured dacoits, because the Judge was of opinion that he was not proved to be a receiver of stolen property. It may be wondered whether Manni Lal has a desire for society of men of different classes in life and just as his pride is that he has highly respectable friends in Cawnpore he may be suffering from a penchant for the society of dacoits. Ordinarily one would have thought that the harbouring of dacoits implied the receipt of stolen property. Unfortunately, the Judge has rested his order on a ground of doubtful legal authority. Under Section 110 the harbouring of dacoits is not given as one of the reasons for calling upon a man to give security for good behaviour. What is stated in (c) of Section 110 is that the accused is alleged habitually to protect or harbour thieves. The learned Judge has considered the law on the subject and has come to the conclusion that none of the rulings quoted by him applies. If so, the matter rests with this Bench to decide in accordance with the wording of the Act. The Judge's opinion was that a thief would include a dacoit, because a dacoit is after all, a thief who commits theft with violence. At the same time, with his predominant sense of refinement the Judge exempted from this class, a robber who commits robbery through extortion. So, according to him the word "thief" would include a dacoit or a robber of one hue, while it would not include a dacoit or a robber of another hue. These distinctions without a difference have to be indulged in when more is sought to be read into a statute than exists on the face of it. His argument as to stolen property being applicable to property whose possession is obtained by dacoity is difficult to understand. Stolen property is specifically defined in Section 410 as property, possession whereof has been transferred by crimes other than dacoity and the possession of such property is punishable under Section 411, I.P.C. When property, possession whereof has been transferred by the commission of dacoity, is contemplated there is a distinct Section 412. There only the words "stolen property" as defined in Section 410 are not used, but further explanation is given that the possession must be of such property as the possessor thereof knew or had reason to believe to have been transferred by the commission of dacoity. This differentiation between Secs.411 and 412, works in a way just the opposite to the argument advanced by the Judge. It indicates that when only the words "stolen property" are used, they do not mean property transferred by the commission of a dacoity.