Ramadhar Singh vs State of U.P.

C.A. Rahim, J.—This revision arises out of the judgment and order dated 13.8.1982 passed by the learned III Additional Sessions Judge, Varanasi in Criminal Appeal No. 106 of 1982 releasing the applicant on probation of two years and on furnishing personal bond of Rs. 2,000 with two sureties for keeping good behaviour. The said appeal was preferred against the judgment and order dated 18.3.1982 passed by the learned VII Munsif Magistrate, Varanasi in case No. 465 of 1982.

Learned Counsel has submitted that in this case the investigating Officer was not examined, sanction was granted without application of mind, no copy of the recovery memo was supplied to the accused u/s 100(7), Code of Criminal Procedure and no respectable witness was called for during search and seizure.

Against that learned A.G.A. has referred a case of Baboo Lal Sahu v. State of Orissa reported in 1994 (2) Crimes 1014, wherein it has been held that mere non-examination of the Investigating Officer would not automatically vitiate the prosecution case. The accused has to establish that non-examination of the said witness caused prejudice to the accused and onus to establish such prejudice lies on the accused. It has been submitted that the investigating Officer would have thrown proper light with regard to the recovery of the articles from the accused. This argument has no substance as it Is not the prosecution case that the investigating Officer was present on the spot.

With regard to the according of sanction to the prosecution learned Counsel has submitted that there was no application of mind of the sanctioning authority in this regard. Learned Additional Sessions Judge while considering the matter has gone through the evidence of the concerned witnesses in this connection. The document itself shows that the recovered country made pistol and live cartridges were produced before the District Magistrate and was returned in due course. After considering the evidence learned Sessions Judge found that the sanction was valid. Nothing has been submitted in this regard to hold a different conclusion.

With regard to the non-supply of the copy of the seizure list and for non-examination of respectable witness, learned Counsel for the revisionist applicant has referred a decision reported in Smt. Prem Latta Vs. State of Himachal Pradesh, , wherein it has been held that when no effort was made by the officer to call upon the search witnesses when independent and respectable persons were easily available in the locality, the accused is entitled to the benefit of doubt due to non-compliance of the provisions of Section 100(4), Code of Criminal Procedure. This decision is not applicable in the instant case as no search of the house of the accused was made or that offensive articles were recovered from inside the house, in fact. Section 100, Code of Criminal Procedure. in its entirety was enacted for the purpose of holding search of a closed place. The caption of Section 100. Code of Criminal Procedure appears as "persons in charge of closed place to allow search". In Mahadeo v. State of U.P. reported in 1990 CriLJ 5838 (AU), it was held that provisions of this section apply only when search is made under a warrant and not otherwise. In a decision reported in 1963 (2) Cri LJ 694 (SC) It was held that though "vehicle" is included in the definition of place in Section 2(p) of the Code a motor car is not a place within the meaning of Section 100, Code of Criminal Procedure. So the provisions relating to search contained. In Section 100, Code of Criminal Procedure has therefore no application." For these reasons in the case reported in AIR 1933 99 (Nagpur) it was held that the officer who intends to search a person cannot issue an order in writing to any inhabitant of the locality and hence the presence of two respectable persons is not necessary. It has also been held in Supreme Court case reported in Sunder Singh Vs. State of Uttar Pradesh, that Sub-section (4) applies when a search is to be made of a place it does not apply to the search of a person.

Section 100(7), Code of Criminal Procedure provides that when any person is searched under Sub-section (3) a list of things taken possession of shall be prepared and a copy thereof shall be delivered to such person. Learned Counsel for the revisionist has stressed much of that provision and submitted that this is mandatory and non-delivery of the copy of the search list would amount to violation of justice. Sub-section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched. So in this Sub-section it has been referred to a place means a place referred in Sub-section (1) of Section 100. Code of Criminal Procedure and it does not refer to a person who is detained on a public road and search is made. In the instant case the prosecution case is that recovery was made on the road while person of the accused was searched. Since Sub-sections (4) and (7) of Section 100 Code of Criminal Procedure are not applicable to a person when searched on a public road, presence of two respectable witnesses and supply of copy of the search list as envisaged in Sub-section (3) do not apply in this case. It is the prosecution case that while recovery was made the accused person was arrested then and there and taken to the police station where a case was registered. So it would make no sense in giving the copy of search list to the said accused person when he was taken in police custody.

The prosecution has to prove beyond all reasonable doubt that the incriminating articles were found from the possession of the accused and for that reason the prosecution would produce reliable evidence. In the instant case three witnesses were examined. P.W. 1 is the Sub-inspector and P.W. 2 is the public witness. It has been stated that since the public witness appeared as a prosecution witness in police case on two previous occasions his evidence should not be accepted. The learned Judge has discussed the evidence of these two witnesses and came to a finding that there is nothing to discredit the testimony of these two witnesses. He also did not accede to the argument of the defence Counsel that as because P.W. 2 appeared before as a police witness his evidence should be discarded. I do not find any material to dismiss the view taken by the learned Judge.

Considering all the circumstances I find that there is no merit in this revision and the same is therefore, dismissed.