Henry Richards, C.J. and Muhammad Rafiq, J.
1. Eighteen accused persons were put on their trial on charges of rioting, dacoity, wrongful restraint, and obstructing the police in discharging their duty the learned Additional Sessions Judge acquitted the accused and Government have appealed. It appears that a dacoity had taken place at a place called Nagla Murli in the Agra district. Some ort of a conference had taken place at which the Deputy Inspector-General of Police was present. The persons attending this meeting appear to have been the Circle Inspectors of the Agra district and he surrounding districts. It was there decided that searches should take place at the houses of persons who were suspected of having been concerned in the dacoity. The result of this meeting was hat Chunni Singh, one of the Circle Inspectors of the Mainpuri District, sent Muhammad Nairn Khan, a Sub-Inspector of Jasrana (in the Mainpuri district), to Mahfuz Ali, one of the Circle Inspectors of the Agra district in whoso circle the dacoity is said to have taken place. Mahfuz Ali says that he gave a written authority be Nairn Khan to search the house of one Nihal Singh and arrest him. In cross-examination he stated: 'I wrote this that the house of Nihal Singh be searched in connection with the dacoity at Nagla Murli, that he might be arrested for the sake of identification, and that the houses of those persons should also be searched who were suspected by the Sub-Inspector of receiving stolen property.'
2. It may be noted here that Muhammad Naim Khan had nothing to do with the investigation of the dacoity which had taken place at Nagla Murli. It was outside his district, and so far as the evidence goes there is nothing to show that Muhammad Nairn Khan even knew what property had been stolen in the dacoity. It is here desirable to mention who Nihal Singh was. Nihal Singh was not a resident of the Mainpuri district. He had belonged to the Agra district. Proceedings had been taken against him in the year 1912 under Section 110 of the Code of Criminal Procedure. He had been bound over, and his father-in-law Brikhbhan Singh, accused No. 2, had gone security for him. Whether it was that Brikhbhan Singh having gone security for his son-in-law wished to keep an eye upon him, or whether he was anxious that no false accusation might be made against him, the fact remains that Nihal Singh had gone to reside with his father-in-law in the village of Malikpur in the Mainpuri district. It would appear that on the 4th of December, 1914, a search bad been made at the house of Brikhbhan Singh. How far this search was legal we are not in a position to say, but the search was not in connection with anything wrong that Brikhbhan had done. The search must have been in some way connected with Nihal Singh, On the 20th of December, that is to say, lb days afterwards, Muhammad Nairn Khan with two constables, Sundar Singh and Debi Singh, arrived at the house of Brikhbhan Singh, between 10 and 11 a.m. He was met in the village by Hakim Singh, and Naubat Singh brother of Hakim Singh, Hakim Singh, King the mukhia of the village, though he lived in a neighbouring village. According to the Police, when they arrived at the house Nihal Singh at once came out and said: 'you have searched the house shortly before and now you are going to search it again;' and he asked them to fight it out before they searched the house. Immediately a number of other persons arrived; they began to beat the Sub-Inspector and the constables; the Sub-Inspector fired three shots from a revolver in self-defence; the revolver was snatched away and the police were badly beaten. They were put into a cell, shut up, their uniforms and turbans taken from them and they were only released after some persons belonging to a neighbouring village came to their rescue. This is the story told by the police. A number of the accused persons admitted that they bad assaulted the police. That the police were assaulted and beaten there is not the least doubt. But the story of the accused, (at least of those who admit having taken any part in the affair) is that the police arrived whilst all the male members of the house wore still at work in the fields, and forced their way into the presence of the women, where they asked for Nihal Singh, that they abused the women, that the women raised an outcry which brought Chotey Singh, a young Thakur aged about 24 years (a son of Brikhbhan Singh and brother-in-law of Nihal Singh) to the house, he remonstrated with and abused the police, and that thereupon the Sub-Inspector deliberately fired at him. Chotey Singh admits that he was stooping to pick up a lathi when he was fired upon by the Sub-Inspector. The accused then say that they took away the revolver from the Sub-Inspector to prevent his shooting other persons, and that it was necessary to do so. They admit that they used lathis, but say that they only did so after Chotey Singh had been shot down.
3. The first matter that requires some consideration is how far the visit of the police to the house of Brikhbhan Singh was legal. It is obvious that the main object of the visit was to search the house. It may even be doubted whether there was ever the least intention of arresting Nihal Singh, except perhaps in the event of suspicious property being found in the house. A search without a warrant from a Magistrate can only be made under the provision of Section 165 of the Code of Criminal Procedure. That section provides as follows: 'Whenever an officer in charge of a police station or a police officer making an investigation, considers that the production of any document or thing is necessary to the conduct of an investigation into any offence which he is authorized to investigate, and there is reason to believe that a person to whom a summons or order under Section 94 has been or might be issued, will not or would not produce such document or thing according to the directions of the summons or order, or when such document or thing is not known to be in the possession of any person, such officer may search, or cause search to be made, for the same, in any place within the limits of the station of which he is in charge, or to which he is attached.'
Clause (2).--Such officer shall, if practicable, conduct the search in person.
Clause (3).--If he is unable to conduct the search in person, and there is no other person competent to make the search present at the time, he may require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer, an order in writing, specifying the document or thing for which search is to be made, and the place to be searched, and such subordinate officer may thereupon search for such thing in such place.
4. We may assume (but only for the purposes of argument) that Mahfuz Ali could have authorized Naim Khan to make the search without a warrant from a Magistrate. But oven on this assumption, it was necessary when Mahfuz Ali was not making the search himself that he should have delivered in writing to Naim Khan an order specifying the thing or things which were to be searched for. The section does not authorize a general search on the chance that something may be found. There is no evidence that any such specification was ever given. So far as the evidence goes there was no such specification. We have nothing to show that Naim Khan knew what he was to search for. It seems very much as if the intention was to do the very thing we have said the section does not authorize. It lay on the prosecution to show that the action of the police was legal, and on the evidence we find great difficulty in holding that Naim Khan was duly authorized to search the house of Brikhbhan Singh.
5. It is contended that while there may have been no legal authority for the search, there was nevertheless authority to arrest Nihal Singh. Arrest without warrant is provided for by Section 54 of the Code of Criminal Procedure. The first part of Clause (J) is as follows: 'Any Police Officer may without an order from a Magistrate and without a warrant, arrest, first, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists of his having been so concerned.'
6. Mahfuz Ali does not say that Nihal Singh had been concerned in the Nagla Murli dacoity, nor does he say that any complaint had been made that he had been concerned in it, or that any information to that effect had been received or that there was a reasonable suspicion of his having done so. He says in his evidence that the object of the arrest was identification. This presumably means that after his arrest he was to be paraded for the purpose of being identified. It further appears extremely doubtful whether Mahfuz Ali Khan could himself have arrested Nihal Singh. He was a Circle Inspector of the Agra district. It is said that Nairn Khan could have arrested Nihal Singh without a warrant under Section 54. It is not even pretended that he was acting under the authority of this section. His authority to arrest (if any) was under the document which he had received from Mahfuz Ali. It would seem, therefore, that neither the search of the house, nor the alleged arrest of Nihal Singh was legal. The charge under Section 332 of the Indian Penal Code, therefore, falls to the ground.
7. The Judgment then proceeded to discuss the merits of the case and thus continued:
It is contended that, even on the assumption that there was no legal justification for a search or for the arrest, nevertheless the accused were guilty of the other charges, namely, under Sections 157, 395 and 342 of the Indian Penal Code, because they had no right of self-defence, having regard to the provisions of Sections 99 of the Indian Penal Code. This argument might have some force if we could think that the police had, even after the mistake, honestly come forward and told us exactly what had happened. We have pointed out that there are substantial reasons for thinking that the account given by the accused is more probable than the account given by the police. If we assume it possible that the police had really made their away into the female apartments in the absence of the male members, and that the moment Chotey arrived they shot him down, we could hardly say that the accused could be held guilty for what subsequently occurred, or that the police could claim protection under Section 99. There is no doubt that the police wore beaten and that lathis were used, at the same time none of the injuries were of a very serious nature: no bones were broken. We also fear that there is reason to think that a number of persons who took no part in the occurrence, and who were at worst only on-lookers, were implicated; for example Pokhpal Singh, who is apparently quite blind of one eye and almost blind of the other. He cannot walk without the support of a stick.
8. With the exception of Daryai Singh there is not one of the prosecution witenesses we can trust. Hakim Singh we consider quite unworthy of belief. He implicates Gulzari Lal, whom he did not implicate in his first report. According to the police he went away when the row began, and yet he pretends to give evidence as to what occurred right up to the end of the row.
9. It is alleged that the accused stole the uniforms of the police. This is a matter which is surrounded with mystery. From the very first the principal accused never pretended that they did not know that it was the police who had come to the house. What object the accused would have in stealing the uniforms of the police it is difficult to understand. It is quite clear that they did not want to keep possession of the uniforms; it would have been most dangerous for them to do so. They would not have kept them for the purpose of concealing the marks of blood because the injuries done to the police were perfectly apparent on their bodies, lb is just possible that they might have kept the uniforms thinking Chotey had been killed and wishing to retain them as evidence of the identity of the persons who were responsible for his death. Under the circumstances and having regard to the evidence of the record, we feel by no means certain that the police were wearing their uniforms on the day in question. It is, however, impossible for us to be certain one way or the other, upon this point.
10. The Judgment of the learned Sessions Judge has been criticised, but we are very far from thinking that he did not arrive at a very fair estimate of the truth of the case. After carefully considering the evidence, we have come to the conclusion that there is no reason for interfering with the Judgment of the court below. We accordingly dismiss the appeal. We direct that those of the accused who are in custody shall be released at once and the warrants against those who are said to have absconded are cancelled.