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Nirmal Singh and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1919All41; 52Ind.Cas.663
AppellantNirmal Singh and ors.
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 103 - penal code (act xiv of 1860), section 332--search, whether can be conducted without warrant--witnesses, absence of, effect of--search, legality of--deterring public servant from doing duty. - - 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 chowkidars......j.1. a magistrate of the first class convicted eleven persons under sections 147 and 332, indian penal code, for rioting and causing hurt to a public servant in discharging his duties, and sentenced them to varying terms of imprisonment and to fines. on appeal, the learned sessions judge of shahjahanpur allowed the appeal of one sukhdeo singh but dismissed the appeal 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 september 1918 in the house of one bhujai in the village of kandar, in.....
Judgment:

Wallach, J.

1. A Magistrate of the first class convicted eleven persons under Sections 147 and 332, Indian Penal Code, for rioting and causing hurt to a public servant in discharging his duties, and sentenced them to varying terms of imprisonment and to fines. On appeal, the learned Sessions Judge of Shahjahanpur allowed the appeal of one Sukhdeo Singh but dismissed the appeal 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 September 1918 in the house of one Bhujai in the village of Kandar, in which, besides other property, a brass 'thal' 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 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. Chunna and Partil, chowkidars, 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 chowkidars. 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, bat I am not prepared to go behind the findings of fact in revision. Several points of law have been raised by the petitioners. It is claimed that the search was wholly illegal on two grounds:

(1) It is argued that the Sub Inspector was not 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.

(2) It is further argued in support of the petitioners' 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 Crown 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 the interference with him would constitute an offence under Section 332, Indian Penal Code. In the absence of any authority in support of the learned Government Advocate's contention I am not prepared to uphold it. Police Officers must be protected when acting in the exercise of their duties. The public have also rights, and it is very important that those rights of the householder should be safeguarded. Section 103 of the Code of Criminal Procedure was introduced into the Act in order to safeguard the rights of a householder 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 householder 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, 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, Indian Penal Code, I am of opinion that they are guilty under Section 503 read with Section 149 of the Indian Penal Code.

2. The applicants have been sentenced to heavy terms of imprisonment and also to heavy fines. I am informed that each of them has undergone ten 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 Rs. 50 in addition to the imprisonment under the section under which I have convicted them. In case of non-payment of fine, each accused, who does not pay such fine, will serve a term of three months' rigorous imprisonment.


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