Full Judgment
Dillon, J.
1. This is an application for revision of an order passed by Pandit Prem Nath, Deputy Magistrate of Muzaffarnagar, convicting the petitioners of an offence under Section 215 of the Indian Penal Code, and sentencing them to eighteen months' rigorous imprisonment each, which order was confirmed upon appeal by the Sessions Judge of Saharanpur on the 14th of March 1898.
2. The facts upon which the conviction was had are as follows: A bullock belonging to Boli, the complainant in this case, was stolen on the night of the 2nd of January of this year. Boli, who was a resident of Bhahisa, took with him certain of the residents of that village and proceeded to the adjoining village of Harya Khera, of which the petitioner Chittar is the headman and the petitioner Nisar the lambardar. There a panchayat was called, at which the two accused were present. What happened at that meeting of the villagers is deposed to by the witnesses for the prosecution in this case. It is in evidence, and has been found as a fact by both the lower Courts, that the petitioners demanded thirty rupees as a reward for returning the bullock. The complainant declined to pay this sum, but offered fifteen rupees, which offer was refused by the petitioners, and the negotiation therefore fell through, A few days afterwards another interview took place between the parties, when the demand and offer above indicated were renewed, and with a similar result.
2. It is upon this statement of facts that the question arises whether the petitioners have committed an offence under Section 215 of the Indian Penal Code, or whether they are guilty of an attempt to commit such offence.
3. The provisions of the section are as follows: 'Whoever takes, or agrees or consents to take, any gratification under pretence or on account of helping any person to recover any movable 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. * * * *'
4. In the first place, I will consider the question whether the petitioners have committed the offence punishable under this section. Did the petitioners take, or agree or consent to take, any gratification? I think not. To my mind the words 'takes, or agrees or consents to take,' as used in this section imply that the person taking the gratification and the person giving it have agreed, not only as to the object for which the gratification is to be given, but also as to the shape or form the gratification is to take. Of course, if a person has actually taken a gratification from another, it must be assumed that he agreed to take, and the other to give it in that particular form or shape; but where the gratification has not actually passed and there is a disagreement as to the form or shape that the gratification is to take the idea of agreement or consent is negatived. In this view the petitioners neither took nor agreed nor consented to take any gratification, and did not therefore bring themselves within the purview of Section 215 of the Indian Penal Code. It remains to consider whether they are guilty of an attempt to commit the offence mentioned in Section 215 of the Indian Penal Code. In my opinion an attempt to take a gratification within the meaning of Section 215 of the Indian Penal Code necessarily includes the idea of a concurrence of wills between the giver and taker; with this much superadded thereto, that some act has been done preliminary to the act of taking. In other words, an attempt is a stage in the commission of the offence which is intermediate between the agreement or consent and the actual taking.
5. Holding, as I do, this view of the law, it follows that in my opinion the petitioners have committed neither the offence made punishable by Section 215 of the Indian Penal Code nor that made punishable by Section 215 read with Section 511 of the Indian Penal Code; and it only remains to add that, acquitting them of the charge on which they have been convicted, I reverse their convictions under Section 215 of the Indian Penal Code and the sentences passed on them thereunder, and as the petitioners are on bail, I direct that their bail bonds be cancelled.