JUDGMENT

Bennett, J - This is a reference by the learned Sessions Judge of Unao on an application for revision of an order passed by an Honorary Magistrate of the First Class. The Special Magistrate convicted Deo Bakhsh Singh of an offence under Section 216, Penal Code, and sentenced him to a fine of Rs. 40. He found that Deo Bakhsh Singh had harboured a man named Bharosey, who is a registered member of a criminal tribe and who had absented himself from his village, and thereby contravened a rule made under Section 20, Criminal Tribes Act. The record does not show what rule Bharosey is alleged to have contravened, but presumably the rule was made under Clause (d) of Sub-section (2) of Section 20. In this case the penalty for contravention is that provided by Sub-section (2) of Section 22, Criminal Tribes Act. Sub-section (1) refers to contraventions of rules made under Clauses (e), (g), and (h) of Section 20 while Sub-section (2) of Section 22 refers to contraventions of other rules. Under Sub-section (1) the contravention is punishable with imprisonment up to one year on a first conviction and to longer periods on subsequent convictions. Under Sub-section (2) the contravention is punishable with imprisonment up to six months on a first conviction and with imprisonment up to one year on any subsequent Conviction. It is assumed by the Sessions Judge that the case comes under Clause (a) of Sub-section (2) of Section 22, that is to say, the maximum sentence of imprisonment for which Bharosey was liable for absenting himself without giving information was six months. So far as I have been able to ascertain this is correct. There is a certificate on the record which shows that Bharosey had twice been bound over under Section 110, and it also shows that he had once been convicted under Section 411, Penal Code. But the previous convictions referred to under Section 22, Criminal Tribes Act, are, I understand, convictions for breach of rules made under that Act. Consequently, I take it that Bharosey was liable only to imprisonment for a term extending up to six months.

2. Section 216 provides that a person har bouring an offender who has escaped from custody or whose apprehension has been ordered shall be punishable in a certain manner. In the present case, Bharosey had not escaped from custody but his apprehension had been ordered. The manner of punishment prescribed by Section 216 is as follows: The section provides that if the person harboured is wanted for an offence punishable with death the person harbouring him shall be punishable with a sentence extending up to seven years: if the man is wanted for an offence punishable with transportation for life or imprisonment up to ten years the person shall be liable to be punished with imprisonment for a term of three years: if the man is wanted for an offence "punishable with imprisonment which may extend to one year and not to ten years" the man harbouring him shall be punishable with imprisonment up to one-fourth part of the longest term of the imprisonment provided for the offence. It seems quite clear from this that the section only takes into consideration cases where the man who is harboured is wanted for an offence for which a maximum sentence of at least one year's imprisonment is provided. No provision is made in the section for cases where he is wanted for offences for which the maximum sentence is less than one year. This is the view taken by the Sessions Judge who has concluded therefore that as Bharosey was wanted for an offence for which the maximum sentence is six months only, the conviction of Deo Bakhsh Singh for harbouring him under Section 216 cannot be maintained.

3. The Special Magistrate has submitted an explanation in which he referred to the definition of "offence" in Section 40, Penal Code. The general definition is that the word denotes "a thing made punishable by this Code," but this is subject to certain qualifications. The first is that in certain chapters a