Nidhi Singh and Another vs The State and Others

Mitter, J.—The petitioners who are brothers, were convicted of offences under sections 332 and 342 of the Indian Penal Code and each was sentenced to suffer rigorous imprisonment for one year u/s 332 of the Indian Penal Code. No separate sentence was, however, passed in respect of the offence u/s 342 of the Indian Penal Code. The case against the petitioners was as follows : A man called Rahamat Ali Shah purchased a deer which, however, ran away from his custody and remained untraced. He filed an ejahar on the 13th of March, on the basis of which a case u/s 111 of the Indian Penal Code was started. The Sub-Inspector in charge of the investigation found it necessary to search the house of the petitioners at Debipore as also the house of one Mohan Tanti at Rukundipore so as to be able to seize the deer. The Police Officer then approached Sri G.P. Bose, Magistrate, First Class, who at the time was hearing a case at Ratua, and prayed for a search warrant. Instead of making an appropriate order for the issue of a search warrant, the learned Magistrate endorsed the petition with the word "approved". No search warrant, however, was issued. The Police Officer, however, armed with this piece of paper, went to the house of the petitioners, but found them absent. There were present at the house at the time the petitioners'' father and a brother-in-law. The Police party consisting of the Sub-Inspector, a constable and a dafadar entered the petitioners'' house and seized the deer from a cow-shed inside the house and brought it to the outer court-yard, where the investigating officer started to prepare a search list. At that time the petitioners returned home and are said to have abused the investigating officer and to have assaulted with a stick, the constable, who tried to intervene The petitioners are also said to have snatched away the seizure list and to have torn it up. According to the prosecution, the petitioners also snatched away the spectacles of the Sub-Inspector.

Upon the above allegations the petitioners were charged, tried, convicted and sentenced as aforesaid. As the petitioners were acquitted of a charge u/s 147 of the Indian Penal Code, it is not necessary to go into the facts as affecting such a charge.

The first point taken by Mr. Ajit Kumar Dutt appearing on behalf of the petitioners is that the entry by the Police into the petitioners'' house was illegal and that therefore any alleged assault upon the police did not constitute any offence u/s 332 of the Indian Penal Code. It is also urged by Mr. Dutt that if the entry was illegal and accordingly constituted a trespass, there could not have been in the circumstances of this case any offence u/s 342 of the Indian Penal Code.

We have been shown a certified copy of the petition which the Police Officer filed before the said Sri G.P. Bose, Magistrate. By this petition a prayer was made for permission to search the houses of the petitioners. The only endorsement appearing on the petition was as follows : "Approved, G.P. Bose, Magistrate, 1st Class." The making of the application and the endorsement thereupon cannot be said to have satisfied the requirements of either section 96 or section 98 of the Code of Criminal Procedure. Mr. Chatterji appearing on behalf of the State was inclined to argue that the police officer concerned purported to act u/s 98 of the Code. When faced with the actual provisions of section 98, learned Counsel was however constrained to admit that the police officer concerned could not have acted under that section. The police officer could, in an appropriate case, have acted u/s 165 of the Code of Criminal Procedure. That, however, could not have been the case here, seeing that the police officer was minded to apply to the Magistrate for permission to effect a search of the houses concerned. The endorsement referred to above conferred no authority for any forcible entry, and there was no authority in the shape of a warrant. We have already stated that the police officer did not act u/s 165 of the Code of Criminal Procedure. Thus, any unauthorised entry by the police into someone''s house for the purpose of a seizure must be deemed to be a trespass. It would follow, therefore, that any seizure thereafter of someone''s property would be illegal. That being the position, any obstruction to an invasion of one''s rights cannot constitute an offence within the meaning of section 332 of the Indian Penal Code. For the same reason, if there was any incidental physical confinement of the police, it could not have been illegal. There was, therefore, no offence u/s 342 of the Indian Penal Code. The conviction concerned was under sections 332 and 342 of the Indian Penal Code. We are, therefore, not concerned with what other offence, if any, might, on the facts disclosed, have been committed by the petitioners.

For the reasons stated, this application succeeds. The conviction and sentence of each of the petitioners are set aside and they are acquitted. The petitioners need not surrender to their bail from which they are discharged.

The Rule is made absolute.

Guha Ray, J.

I agree.