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Emperor Vs. Nirmal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in(1920)ILR42All67
AppellantEmperor
RespondentNirmal Singh and ors.
Excerpt:
.....made without witnesses--resistance on the part of householder--act no. xlv of 1860 (indian penal code), sections 332 and 503. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools..........a magistrate of the first class convicted eleven persons under sections 147 and 332 of the indian penal code, for rioting and causing hurt to a public servant in discharging his duties, and sentenced them to various terms of imprisonment and to fines. on appeal the learned session judge of shahjahanpur allowed the appeal of one, sukhdeo singh, but dismissed the appeals of the other ten appellants, upholding the sentences passed on them. these ten persons have filed revisions in this court against their convictions and sentences and were released on bail by the learned judge who admitted their applications. the facts of the case are somewhat singular. it appears that a burglary was committed on the night of the 30th of september, 1918, in the house of one bhujai in the village of kandar,.....
Judgment:

Wallach, J.

1. A Magistrate of the first class convicted eleven persons under Sections 147 and 332 of the Indian Penal Code, for rioting and causing hurt to a public servant in discharging his duties, and sentenced them to various terms of imprisonment and to fines. On appeal the learned Session Judge of Shahjahanpur allowed the appeal of one, Sukhdeo Singh, but dismissed the appeals of the other ten appellants, upholding the sentences passed on them. These ten persons have filed revisions in this Court against their convictions and sentences and were released on bail by the learned Judge who admitted their applications. The facts of the case are somewhat singular. It appears that a burglary was committed on the night of the 30th of September, 1918, in the house of one Bhujai in the village of Kandar, in which, besides other property, a brass 'that ' and a ' lota ' were lost. A report was made in the ordinary course, and Sub-Inspector, Godhan Lal, second officer of the police station, Jalalabad, within whose circle the offence was committed, took up the investigation. He suspected one Harsahai Bhangi, and, on the 5th of October, he first searched his house, and finding nothing, he proceeded, on information received that the stolen property was in the possession of one Nirmal Singh of Kateli, a village some two furlongs away from Kandar, to Kateli, and at once wanted to search his house. Chunnna and Partil, chaukidars, had in the meantime come up and were with him at the time. According to the facts as found by the courts below, he informed Nirmal Singh that he suspected that the stolen property was in his house and wanted to search it. Nirmal Singh and the other applicants resisted his doing so, and whilst thus resisting they are alleged to have caused simple injury both to him as well as to the chaukidars. They are further alleged to have snatched his pagri and revolver from him, and are alleged further to have compelled him under threats to draw up a search list, saying that a search had been made and that nothing had been found. These facts are contested by the petitioners, but I am not prepared to go behind the findings of fact in revision.

2. Several points of law have been raised by the petitioners. It is claimed that the search was wholly illegal on two grounds. First it is argued that the Sub-Inspector was pot empowered to proceed on the search without a warrant. I am not prepared to accept this contention. The Sub-Inspector was undoubtedly empowered to investigate. Being empowered to investigate the charge, he had, in my opinion, the right to search, which is incidental to his right to investigate. Secondly, it is further argued in support of the petitioner's application that the officer conducting the search was bound under Section 103 of the Code of Criminal Procedure to call upon two or more respectable inhabitants of the locality to attend and witness the search. That section further provides that the search shall be made in the presence of search witnesses. It is admitted on behalf of the Grown that the provisions of this section were totally ignored by the Sub-Inspector, but it was argued in support of the conviction that the provisions of that section were purely formal and that non-compliance with the same would not invalidate the search, and that therefore the officer conducting the search, in spite of his ignoring the provisions of that section, was acting in the discharge of his duties, and that interference with him would constitute an offence under Section 332 of the Indian Penal Code. In the absence of any authority in support of the learned Assistant Government Advocate's contention, I am not prepared to uphold it. Police officers must be protected when acting in the exercise of their duties. But the public have also rights; and it is very important that those rights of the house-holder should be safeguarded. Section 103 of the Code of Criminal Procedure was introduced into the Act in order to safeguard the rights of a house-holder and also to ensure that the search conducted by the police officials should be an honest search and a genuine one. I am prepared to go so far as to hold that when the provisions of that section are ignored a house-holder is justified in closing his door and refusing ingress into his house. Holding this view, I am of opinion that no offence under Section 332, of the Indian Penal Code has been made out. On the other hand, it is quite clear on the facts as found that the applicants were absolutely unjustified in the further action taken by them beyond merely preventing--the police officer from entering the house. This further action consisted in compelling the police officer to draw up a document setting out that a search had been made and nothing was found. The petitioners, through their counsel here, deny that such action was taken by them and the learned Counsel asks me to look into the evidence in order to satisfy myself on that point; but I am not going to look into the evidence in a revision. It may have been necessary for the purpose of honestly preventing the Sub-Inspector from forcing his way into the house and conducting the illegal search, to snatch away his revolver, but there can- be absolutely no justification for the further action of compelling him to write out the false statement that the search had actually taken place. Whilst being, therefore, of opinion that) the petitioners should be acquitted of the charges under Sections 147 and 332 of the Indian Penal Code, I am of opinion that they are guilty under Section 503, read with Section 149 of the Indian Penal Code The applicants have been sentenced to heavy terms of imprisonment and also to heavy fines. I am informed that each of thorn has undergone 10 days' rigorous imprisonment. They have served sufficient terms of imprisonment, and I reduce the periods of their imprisonment to the periods already served. It is further submitted, and not contested, that the ten petitioners are members of one and the same family. The combined fines to which they have been sentenced amount to an aggregate sum of Rs. 1,900, I sentence each of the petitioners to a fine of Kb. 50, in addition to the imprisonment under the section under which' 1 have convicted them. In case of non-payment of fine, each accused who does not pay such fine, will serve a term of three mouths' rigorous imprisonment.


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