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4. The counsel next contended that the offence did not fall Under Section 399 or Section 402, Indian Penal Code. Section 399 says that whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to the. Dacoity is defined in Section 391 and is in the following terms:

391. When five Or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more every person so committing, attempting or aiding is said to commit "dacoity". In this connection it is also helpful to reproduce the definition of the word "robbery" which is contained in Section 390:

Explanation. The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of " instant wrongful restraint.

The counsel contends that unless the accused persons could be shown to have caused to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint, the provisions of Section 391 and of Section 399 could not be attracted. The argument of the learned Counsel suffers from a basic fallacy. Section 399 makes any preparation for committing dacoity an offence which means that preparation for committing a robbery by five or more persons is an offence which falls within the purview of Section 399.

If preparation by itself is an offence, then I cannot see how the counsel expects the actual causing of death, hurt or wrongful restraint to be the essential ingredient of the offence, as contemplated by Section 399. But this apart, preparation for putting persons even in fear of instant death or of instant hurt or of wrongful restraint is made an offence by Section 399, Indian Penal Code. If this be the correct legal position, I fail to understand how it is necessary for actual injury to be caused in order to attract the provisions of Section 399, Indian Penal Code. I have, therefore, no repelling this contention.

5. The counsel then argued that the offence Under Section 402 has not been established. This Section is in the following terms :

402. Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

On the language of the Section I think the offence as contemplated by it is also fully established though the offence falling under this Section and the offence falling Under Section 399 would probably involve almost similar ingredients, the only difference being that Under Section 402 mere assembly without other preparation is enough whereas Section 399 is attracted when some additional step is taken in the. course of preparation.