Sitaram Ahir and Others vs Emperor

Rowland, J.—This is an application presented on behalf of 8 persons who have been convicted u/s 353, Penal Code, and each sentenced to undergo rigorous imprisonment for six months. An appeal by the petitioners was dismissed by the Additional District Magistrate. The ease for the prosecution was that they had assaulted a junior Sub-Inspector of Police Babu Lachmi Shankar Prasad Singh of Gopalgunj police station while acting in the exercise of his duty.

The officer named had gone to village Semrahi on 14th November 1942 under the orders of the officer in charge of the police station in connexion with the investigation of a dacoity case, but the present occurrence has nothing to do with that case. One Gokhul Kurmi came to the junior Sub-Inspector at 6 P.M. and informed him that Sitaram Ahir and others had committed theft of paddy from the field of the informant. The junior Sub-Inspector not being an officer in charge of a police station drew up a fard bian which he forwarded to Gopalgunj police station to be entered and numbered as a first information report by the officer in charge of the police station u/s 154, Criminal P.C. On the next day he visited the place of occurrence of the new cases that had been reported to him and took up an investigation. It may be noticed that it is for the officer in charge of a police station to entertain first information report u/s 154 and to proceed to the spot and investigate u/s 157 of the Code unless he "shall depute one of his subordinate officers" to proceed and investigate. In the present instance the junior Sub-Inspector appears to have acted without authority in taking up an investigation of a case which he had not received as officer in charge of a police station u/s 154, neither had he been deputed to investigate it u/s 157.

Having examined some witnesses, it is said that he observed a trail of paddy leading to I the house of Sitaram and his family. Those persons it seems told the Sub-Inspector that they had indeed cut and removed the paddy, but that the field on which it was grown was their own and they had themselves grown and cut the crop. The junior Sub-Inspector next proposed to search the house of Sitaram and his brothers, in presence of search witnesses, but they stood up to him and refused to allow the search to be made. They were armed with lathis and assumed a threatening attitude. One of them Sitaram actually raised his lathi to strike the Sub-Inspector, but it was warded off, by a dafadar and a chowkidar. The proposed search was then abandoned.

Those are the facts about which there is no dispute. Now the question is whether the accused persons have committed the offence u/s 353, Penal Code, or any other offence. The ingredients of the offence u/s 353 are these: Firstly, assault or use of criminal force; Secondly, it must be done to a person being a public servant; Thirdly, the public servant must be in the execution of his duty as such or the assault must be in consequence of something done or attempted to be done by him in the lawful discharge of his duty as such.

Now the point taken for the petitioners is that the Sub-Inspector was not acting in the execution of his duty and was not doing any thing in the lawful discharge of his duty. It is said that he had no authority in the circumstances of this case to search the house of Sitaram.

It may be convenient here to set forth the main provisions of the Code relating to searches which fall into two classes according as they are made without warrant or in pursuance of a search warrant issued by a Magistrate. Search warrants are dealt with in Section 96 of the Code and the succeeding sections. The first case dealt with in Section 96 is when a particular document or thing is required to be produced and the Court either believes that a person who might be summoned to produce it would not comply or does not know the document or thing to be in the possession of any person. In such a ease the Court can issue a search warrant. The next case is when the Court considers that the purposes of any enquiry, trial or other proceeding under this Code will be served by a general search or inspection. In this case too the Court may issue a search warrant and it is to be noticed that the Code does not restrict the warrant to authorising the search for any particular document or thing. The warrant may be limited to the search of a particular place--Section 97--or may not. There is provision in the succeeding sections-for special eases. When a search is to be made in pursuance of a warrant under this chapter Section 102 imposes on the person in charge of such a place the duty of permitting free ingress and reasonable facilities to the person executing the warrant, on demand. Two or more respectable inhabitants are to be called in as search witnesses u/s 103. There is further power given in Section 105 of the Code to any Magistrate to direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant.

The powers of a police officer to make a search without warrant are defined in Section 165 of the Code. These powers are given to an officer in charge of a police station or a police officer making an investigation. Powers are not conferred on police officers generally and at large. Assuming the officer to be of the class referred to, the next pre-requisite is that he must have reasonable grounds for believing that he will find a thing in a place within the limits of his police station. His being of that opinion is not in itself sufficient to justify him in making a search. The normal procedure in such a case is intended to be that he should apply to the Magistrate for a search warrant, but the requirement of a search warrant is dispensed with if he has reason to believe that the thing for which he means to search cannot be otherwise obtained without undue delay, that is to say, that the object of the search would be frustrated, if he waited to obtain a search warrant. When all these conditions are fulfilled the officer, if he decides to make a search must record in writing the grounds of his belief and is to specify in such writing, so far as possible, the thing searched for. There is one more essential preliminary. Section 103 of the Code must be complied with, that is to say, before making the search, he is to call upon two or more respectable inhabitants of the locality to attend and witness the search which is to be in their presence. When he has done all this, and not before, the Code authorises him to search or cause search to be made for such thing. It is very noticeable that Section 165 differs sharply from Section 96 in the absence of a power to conduct, without a search warrant, a general search or inspection. This difference, I fear, is too often lost sight of by police officers. In the present case the following are the principal defects which can be urged against the legality of the search which the Sub-Inspector was proposing to conduct: First he had not got a warrant; secondly, he was not an officer in charge of a police station; thirdly, he was not an officer investigating into an offence which he was authorised to investigate; fourthly, he did not record in writing his grounds for wishing to make a search; fifthly, he did not specify the thing for which search was to be made.

The Bihar Police Manual in para. 165 enjoins that house searches are to be made only in the circumstances stated in Sections 165 and 166, Criminal P.C. The same paragraph reminds police officers of their duty to record in their diaries the reason for every search and the articles or which search is to be made, before proceeding with the search, These instructions in the Manual have been ignored as completely as the provisions of the Code. Now I have no difficulty in holding that the Sub-Inspector cannot be held to have been acting in the lawful discharge of his duty or in the execution of his duty as a Sub-Inspector so as to bring the acts of the accused persons within the mischief of Section 353, Penal Code. In the result it is clear that all the accused except Sitaram are entitled to a clear acquittal for it was not an offence merely to withstand the Sub-Inspector, whereas Sitaram it seems actually raised a lathi to strike him and perhaps aimed a blow which did not j take effect. At any rate that is enough to constitute an assault within the meaning of Section 852, Penal Code, for which Sitaram will be liable unless he is protected by a right of private defence.

It has been pointed out for the prosecution that u/s 99, Penal Code, 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 a public servant acting in good faith under colour of his office though that act may not be strictly justifiable by law, but I am very doubtful whether in the present case it can be said that the Sub-Inspector was acting in good faith under colour of his office having regard to the definition in Section 52 that nothing is said to be done or believed in good faith which is done or believed without due care and attention. The prosecution cannot therefore call in aid Section 99 as an answer to the claim to a right of private defence against anything which but for that section would give such a right. This view is in agreement with the decisions in Gopi Mahto and Others Vs. Emperor, and Chander Prasad Vs. Emperor, which I prefer to follow rather than the old decision of the Madras High Court in Queen-Empress Pukot kotu (1996) 19 Mad. 349 . But the right itself only arises u/s 97 against an act which is either an offence against the human body or an offence of a kind specified in the section against property. Here it is not pleaded that the Sub-Inspector had laid hands on Sitaram or any of the accused, nor is it anyone''s case that on being told by the accused that they would not allow the house to be searched he made any actual move towards forcibly entering the premises. Nothing therefore that the Sub-Inspector had done amounted to the commission or attempt to commit any offence referred to in Section 97. It follows that there was no right of private defence, not because the Sub-Inspector can invoke Section 99, but because the accused are not entitled to invoke Section 97. It follows that Sitaram is guilty of assault and must be convicted u/s 352, Penal Code.

It will sufficiently meet the ends of justice to sentence him under this section to the term of imprisonment already undergone. The other petitioners are acquitted.

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