Faqira and Another vs Emperor

Sen, J.—The case is a sequel to Criminal Revision No. 377 of 1929, [Faqira v. Emperor A.L.R. 1929 All. 901(2) which has already been disposed of. On 24th March 1929, Sub-Inspector Mr. Abdul Rauf Khan raided the house of Faqira Chamar upon certain information received that the latter was in possession of illicit liquor. The Sub-Inspector was not armed with the necessary search warrant. The learned Sessions Judge has found that the procedure adopted by the Sub Inspector was irregular. It was irregular because the Sub-Inspector, if he be considered to be an officer coming within the purview of Section 53, Excise Act, did not take the trouble to record his reasons for the belief that the house of Faqira Chamar contained illicit liquor.

It is alleged that the Sub-Inspector found two bottles of illicit liquor inside the house, that Faqira ran up and tried to break the two bottles, that Fatehyab Khan constable snatched one of the bottles from Faqira''s hands, but that Faqira and Mangan pushed the constable down and that Mangan aimed a lathi blow which fell on the bottle in the hands of the constable.

On these facts, the learned Magistrate convicted Faqira and Mangan u/s 352, I.P.C. and sentenced them to two months'' rigorous imprisonment.

The learned Sessions Judge of Saharanpur has confirmed the conviction and sentence on appeal.

In the absence of a proper search warrant, it is more than doubtful whether it could be said that the Sub-Inspector and the constable acting under him were engaged in the execution of their duty as public servants. Faqira, the owner of the house, had a right to resent the invasion of his house by the police officers. Technically the police officers were guilty of house trespass. No harm appears to have been sustained by Fatehyab Khan constable beyond the push which he received from Mangan. It has been strongly argued that in view of the circumstances of the case, no offence is brought home to the applicants u/s 353, I.P.C. This contention is not without force and is supported in principle by a decision of this Court in re, Madho Sonar v. Emperor [1915] 13 A.L.J. 691. I allow the application for revision, set aside the orders of the Courts below and direct the release of Faqira and Mangan. They are already on bail and need not surrender to their bail.