Ram Parves Ahir and Others vs Emperor

Agarwala, J.—The appellants have been convicted of offences under Sections 147 and 338 read with Section 149, Penal Code. They have been sentenced to seven years'' rigorous imprisonment in respect of the offence u/s 333 read with Section 149. No sentence has been passed on the charge of rioting.

The facts are that Sub-Inspector Raghubans Singh was instructed by the officer in charge of the Arrah Mufassil thana to proceed to villages Kusmha and Bhagwatipur, and in those villages to make house searches in connexion with a docoity case which was tinder investigation. Sub-Inspector Raghubans Singh, accompanied by an Assistant Sub-Inspector, arrived at village Kusmha and there searched certain houses, seized certain property and arrested two Ahirs. They then proceeded to Bhagwatipur where they entered the house of the appellant Ram Parvesh Ahir after having given search of their person to the women in the house, there being no males there at the time. They were accompanied by two search witnesses. In the house, Raghubans Singh seized a tin of mustard oil on which one of the women of the house was sitting and also an earthern pot of mustard oil.

The search was then interrupted by hostile cries outside the building. The search party thereupon emerged from the house and noticed a mob of 50 or 60 persons coming towards them armed with spears and lathis. Sub-Inspector Raghubans Singh deposed that he informed this mob that he was a police officer engaged in the discharge of his duties and that he asked them to disperse. As however they assumed a threatening attitude, he directed the Assistant Sub-Inspector to fire his gun in the air. This was done, but, apparently, had no effect on the attitude of the mob which continued to advance. Then the Sub-Inspector gave order for the gun to be fired at the mob. For some reason this was ineffective as the shot misfired. Finding themselves in danger from the mob the police party receded, pursued by the mob, which assaulted them and injured all of them. The injuries on the Sub-Inspector and the Assistant Sub-Inspector were very severe, and the Assistant Sub-Inspector was indeed rendered unconscious. It is alleged that the appellant took part in the occurrence. It may be mentioned that 31 persons were put on their trial, of whom 18 were acquitted, and the remaining 13, who are the appellants in this case were convicted.

The charge of rioting against the accused persons alleged that the common object of the unlawful assembly, of which they were members, was forcibly to obstruct the police party in the discharge of their duty and to cause hurt to them. The charge u/s 333 read with Section 149 was that in prosecution of the common object already referred to the accused persons voluntarily caused grievous hurt to Sub-Inspector Raghubans Singh and Assistant Sub-Inspector Ramdhari Singh while they were discharging their duty as public servants.

It has been contended on behalf of the appellants in this Court, as it was contended on their behalf in the Court below, that assuming they were members of an assembly, the assembly was not unlawful inasmuch as the common object was not an unlawful common object. The basis of this contention is that Sub-Inspector Raghubans Singh had no authority whatsoever to search the house of Ram Parvesh Ahir. Section 165(1), Criminal P.C., authorises an officer in charge of a police station, or a police officer making an investigation, to search for anything which he considers necessary for the purpose of the investigation if he is satisfied that such thing cannot be otherwise obtained without undue delay.

As such a search may entail the entry into premises usually not open to police officers, the Legislature has required that certain preliminaries shall be entered into before action is taken under this section. In the first place, the officer about to make the search is required to record in writing the grounds on which he believes that the thing to be searched for is necessary for the purpose of the investigation and that it cannot be otherwise obtained without undue delay; and the second requirement is that in such record of the grounds of his belief he shall specify the thing for which search is to be made, or to be caused to be made. This latter provision is clearly intended to restrain a police officer from initiating or conducting anything in the nature of a general search. Sub-section (2) of Section 165 directs that the officer referred to in Sub-section (1) shall, if practicable, conduct the search in person. But, in the event of it not being practicable for him to do so, provision is made in Sub-section (3) for him to delegate his authority to a subordinate.

Here again, the Legislature insists on certain preliminary steps being taken. In the first place, the officer is required to record in writing the reasons why it is necessary for him to delegate his duty. Secondly, he must deliver to the subordinate officer to whom he delegates his authority an order in writing to this effect. Thirdly, the written authority delivered to the subordinate who is actually to conduct the search must specify the place to be searched, and so far as possible, the thing for which search is to be made. The Sub-section concludes with these words "and such subordinate officer may, thereupon, search for such thing in such place." The Legislature could not very well, therefore, have expressed more clearly its intention that when a subordinate officer is instructed to carry out a search, which it is not practicable for his superior officer to conduct, he is to search only for the thing which he is instructed to search for, and that he is to search for it only in the place specified in his authority.

In the present instance, Sub-Inspector Raghubans Singh was very well aware of the importance of being armed with the written authority required by Sub-section (3) of Section 165. He, therefore, deliberately attempted to mislead the Court below by stating that such a written authority had been given to him, but that it had been seized by the mob. When he was cross-examined about this by the defence, he admitted that he had neither informed the investigating officer in the course of the present investigation, or the Magistrate who conducted the preliminary enquiry, that his papers had been seized by the mob. As a reason for this omission, he stated that he had not been questioned about the matter. That this officer was lying in this respect is left in no doubt by the evidence of Sub-Inspector Azam, p.w.11, the officer in charge of the Arrah Mufassil fchana, under whose direction Sub-Inspector Raghubans Singh proceeded to Bhagwatipur. What that officer says is that he gave oral orders to Sub-Inspector Raghubans Singh and the Assistant Sub-Inspector and that he noted these orders in the station diary. The station diary has not been produced, and there is no evidence whatsoever on the record that the Sub-Inspector Azam ever complied with the provisions of Sub-section (1) of Section 165, Criminal P.C., and his own evidence clearly shows that the provisions of Sub-section (3) were not complied with. His omissions in this respect have necessarily led him also not to comply with another duty cast upon him by Sub-section (5) of Section 165. That Sub-section requires that copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and also entitles the occupier or owner of the place searched J to be furnished with a copy of that record on application made by him to the Magistrate.

The point that arises for consideration in this appeal is the effect of the non-compliance with the provisions of Sub-section (1) and (3) of Section 165 by Sub-Inspector Azam on the acts attributed to the appellants. On behalf of the appellants, it is contended that they were entitled to obstruct or resist a search made by a person who had no authority whatsoever to make it. Reference in support of this proposition was made to a decision of the Calcutta High Court in Idu Mandal v. Emperor (1907) 6 C.L.J. 753. The facts of that case were that a constable was sent to make a search, but no written authority was given to him under Sub-section (3) of Section 165. He was obstructed by a number of persons who were convicted of rioting. The conviction was challenged in the High Court, and a Division Bench held that as the constable had no written authority he was acting without jurisdiction, and that resistance to his proceedings was not illegal, and, therefore, that the members of an assembly whose common object was to resist the constable could not be convicted on a charge of rioting.

In a case which came before a single Judge of the Allahabad High Court, Madho Sonar Vs. Emperor, , the facts were that the officer in charge of the police station at Kuraon sent an intimation to the officer in charge of the police station at Manda that he intended to search a house within the jurisdiction of the latter officer. A constable was deputed by the Sub-Inspector of Manda to assist the Sub-Inspector of Kuraon in making this search. The Sub-Inspector of Kuraon also had with him a cons-table from his own thana. The search was resisted, and the two constables were assaulted. It was held by Piggott J., that as the provisions of Sections 165 and 166, Criminal P.C., had not been complied with, the convictions u/s 353 must be set aside. There is no authority of this Court, directly in point, that is to say, on the effect of non-compliance with the provisions of Sub-section (3) of Section 165. On behalf of the Crown it has been contended in this Court that the effect of Section 99, Penal Code, is to render the acts of the appellants criminal. That contention was also advanced in support of the convictions in Idu Mandal Emperor (1907) 6 C.L.J. 753, but was negatived. Section 99 is divided into two parts. Paragraph 1 states that there is no right of private defence against an act which does not reasonably cause the apprehension of the death or of grievous hurt, if done or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. It has been strenuously contended that Sub-Inspector Raghubans Singh was acting under colour of his office when he searched the house of the appellant Earn Parvesh. This phrase "under colour of his office," which occurs in Section 99, has been subject of many judicial decisions. I am unaware of any case in which it has been held that an officer acting without a shred of authority can be held to be acting under colour of his office.

It is true that Sub-Inspector Raghubans Singh had received an order from his superior officer to search some house at Bhagwatipur. The evidence does not disclose that his instructions were to search the house of Ram Parvesh. For the sake of argument, however, I will assume that that was so. If Raghubans Singh had been given a written order by his superior officer and had then proceeded to make the search he would have been acting under colour of his office even though there was some forma!, defect in the authority given to him or even if his superior officer had not complied with the requirements of Sub-section (1) of Section 165. But Sub-Inspector Raghubans Singh must be taken to have been very well aware of the law on the subject, namely, that he was not entitled to search the house of anyone unless he had first received from an officer in charge of a police station, or an officer making an investigation, a written authority specifying the house to be searched and the thing to be searched for. The attempt of Sub-Inspector Raghubans Singh to mislead the Court by deposing that he had in fact received such a written authority clearly indicates that he realised the importance of being clothed with a written authority. Even if it could possibly be assumed that the phrase "under colour of his office" could cover circumstances such as exist in the present instance, it would still not be possible to hold this officer was acting in good faith, in view of the declaration in Section 52, Penal Code, that nothing is said to be done or believed in good faith which is done or believed without care and attention. No Sub-Inspector of police can expect a Court of law to hold that he is unaware of the requirements of Sub-section (3) of Section 165, Criminal P. C, and if no written authority is delivered to him, he cannot be held to be acting in good faith.

The second part of Section 99 declares that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. It is arguable that Sub-Inspector Raghubans Singh was acting by the direction of a public servant, and this part of the section would apply if that public servant could be held to have been acting in good faith under colour of his office. Here again, however, it cannot be held that Sub-Inspector Azam was acting in good faith for he knew very well that it was necessary for him to deliver a written authority to Sub-Inspector Raghubans Singh and he did not do so. In view of Section 52 it is impossible therefore to hold that Sub-Inspector Azam was acting in good faith under colour of his office, and that being so, the second part of Section 99 does not affect the present case.

This being my view of the law on the subject, I would hold that no offence was committed in resisting the search of Ram Parvesh''s house and that the charge of rioting in the present case must fail, because the common object of the persons engaged in the resistance was not unlawful. It also follows that with the failure of the charge u/s 147 the charge u/s 333 read with Section 149, must also fail. It appears that the Sub-Inspector and the Assistant Sub-Inspector were very severely assaulted, and it may be that if the prosecution had been able to establish that these officers had been assaulted by particular individuals, the circumstances would be such as to lead to the conclusion that those individuals had exceeded their rights. In this case, however, we have no evidence as to who inflicted the injuries on the Sub-Inspector and the Assistant Sub-Inspector.

In conclusion, it is to be hoped that the deliberate perjury by Sub-Inspector Raghubans Singh will not escape the notice of his superior officers. The appeal is allowed, the convictions and sentences of the appellants are set aside and they will be released.

Imam J.

I agree.