Lachuman Singh and Another vs Emperor

Dhavle, J.—The petitioners, who are brothers, were convicted by a First Class Magistrate of Bihar under Sections 332 and 342, Penal Code, and sentenced to rigorous imprisonment for nine months and three months each under those sections, respectively, the sentences of each accused running consecutively. On appeal, the Sessions Judge of Patna upheld the convictions but reduced the sentence u/s 332 to rigorous imprisonment for four months and made the sentence u/s 342 concurrent with it.

The lower Courts have found that in the investigation of a case u/s 363, Penal Code, the Sub-Inspector of Hilsa went to the house of the petitioners and asked them to produce the ''kidnapped girl, Anupa, and one Ramsewak, who was said to have kidnapped her. The petitioners denied the presence of these two persons in their house, whereupon the Sub-Inspector said that he would search the house. The petitioners then dragged the Sub-Inspector inside the house and assaulted him.

The learned advocate for the petitioners has endeavoured to make out that the proceedings of the Sub-Inspector were illegal because he had not been armed with a warrant u/s 100, Criminal P.C. He had obtained this rule on the ground (among others) that the search that the Sub-Inspector proposed to make was, like a search to be made u/s 165, Criminal P.C., open to the objections noticed by me in Gopi Mahto and Others Vs. Emperor, . But Section 165 can have no possible application to the facts of this ease. That section empowers an investigating Police Officer to, make a search for anything necessary for the purposes of his investigation, and there is no room for pretending that in the present case the Sub-Inspector intended a search for anything. It was for Ramsewak, the person accused in the kidnapping case, besides Anupa, that he intended to search the house of the applicants. It is true that the Sub-Inspector had no warrant u/s 100, Criminal P.C., but his authority to act as proposed, as pointed out by Mr. Avadhesh Nandan Sahay who appears on behalf of the Crown, is to be found in Sections 54 First, 47 and 48, Criminal P.C. He was clearly empowered under the First of these sections, without any order or warrant from a Magistrate, to arrest Ramsewak, who, on the information before him was concerned in an offence u/s 363, Penal Code, a cognizable offence. It appears that he also had reason to believe that Ramsewak was in the house of the petitioners. u/s 47, the petitioners were therefore bound to allow him free ingress to the house and afford all reasonable facilities for a search therein. Failing this, Section 48 authorised the Sub-Inspector to force himself into the house. As all this was in the discharge of his duty as Sub-Inspector in charge of Police Station Hilsa, the hurt caused to him by the petitioners (and possibly others whom it is not necessary to mention now) comes within Section 332, Penal Code, and the applicants'' conviction of an offence under this section cannot be said to be vitiated by any excess of authority on the part of the Sub-Inspector. The learned advocate for the petitioners has taken me into the cross-examination of the Sub-Inspector when recalled but has been unable to show from it that even if Section 165 had been applicable to the search which the Sub-Inspector proposed to make, there were any material in the evidence for taking exception to the Sub-Inspector''s proceedings on the ground that he had not recorded in writing the grounds of his belief, etc., and sent copies of the records so made forthwith to the nearest Magistrate.

The learned advocate has also urged that the sentence is excessive in view of the observations of the learned Sessions Judge that there are indications that the applicants thought that no bona fide search of their house was being made and that it was an effort of their enemies to insult them by getting the Sub-Inspector to search their house. It was precisely because of these indications that the learned Sessions Judge substantially reduced the sentence passed upon the applicants, and it does not seem to me that, even under the impression that the Sub-Inspector was merely playing into the hands of their enemies, without any honest intention of searching the house of the applicants for Ramsewak, who was wanted in the kidnapping case, the applicants were not seriously to blame in dragging the Sub-Inspector inside their house and subjecting him to a protracted assault. Taking all the circumstances into account I see no reason to interfere with the sentence as reduced by the learned Sessions Judge. The application is accordingly dismissed.