H.C.P. Tripathi, J.
1. This appeal by the State of Uttar Pradesh is directed against an order of acquittal recorded by the learned Assistant Sessions Judge of Banda in a case under Sections 224, 379, 225, 148 and 332/149,. I.P.C.
2. The facts of the case lie in a narrow compass.
3. One Alauddin (P. W. 2) lodgel a report at Police Station Bisanda, district Binda, that in his absence his houee bad been burgled and. his movables removed. On this report a case was registered and Sub. Inspector V.P. Rastogi (P. W. 1) took up the investigation. Having armed himself with a loaded revolver and accompanied by three constables he went to village Korari and reached there at 9-30 a. m. He arrested one Chanda and interrogated him. Chanda offered to give some items of the stolen property and handed over two ornaments which bore resemblance with the stolen property as mentioned in the report. Chanda stated to have kept some of the stolen article with Hira Lal alias Hirwa of the village and offered to point them out to the police. Accordingly the police party along with Chanda, went to the house of Hira Lal. Sri Rastogi told Hira Lal that he will take a search of his upper room. Hira Lal remonstrited and told him that he will not permit his house to be searched. Meanwhile a number of other villagers including the respondents arrived on the scene armed with lathis, Sri Rastogi insisted for searching the upper room in the Atari and began to climb the ladder leading to it. Hira Lal, however, pulled him down by his legs and respondent Radhey Shyam gave a danda blow on his head. Sri Rastogi then whipped out his revolver but before he could use it the respondents surrounded him and his companions, beat them with lathis and deprived Sri Rastogi of his revolver. Sri Rastogi then wrote out a report of this occurrence and sent the same to police station Bisanda through & Ohaukidar.
4. Sri Rastogi and the two constables, who had received injuries in the occurrence, were medically examined by Dr. Jitendra Verm (P. W. 9) on 18-10-1968 at the district hospital, Banda, between 9 and 9.50 p.m, who found six contusions, two contused wounds and three abrasions on Sri Rastogi, four contusions on constable Krishna Kumar, three contusions on constable Satya Narain and one contusion on constable Jang Bahadur which were all of simple nature and appeared to have been caused by some blunt object. The duration of the injuries in medical opinion synchronised with the time of the occurrence.
5. During the course of investigation the revolver of Sri Rastogi was recovered at the pointing out of the respondents and after its completion the ten respondents and one Chanda were sent up for trial. At the trial the respondents pleaded not guilty to the charges.
6. The prosecution case was supported by Sub. Inspector Rastogi and the two constables Satya Narain and Krishna Kumar all of whom had received injuries during the occurrence and by Alanddin and Bhagwant Singh who stated to have been present at the time of the occurrence and seen the respondents beating the police party on the exhortation of Hira Lal.
7. The learned Sessions Judge on an assessment of evidence reached the following conclusions; --
(a) The true version of the occurrence was dressed up and then presented in the Court.
(b) Shri Rastogi has not complied with the provisions of Section 165 of the Criminal P.C., before embarking on the search of Hira Lal's house and, therefore, his attempt to conduct the search was illegal.
(c) The search being illegal Hira Lal was entitled to prevent it and with that end in view he pulled down Sri Rastogi when he had ascended the ladder leading to his upper room.
(d) Sri Rastogi thereafter whipped out his loaded revolver and then the respondents cried out that he should be beaten and his revolver should be seized. Thereafter Sri Rastogi and the constables were beaten by the villagers who deprived him of his revolver.
8. On these findings the learned Sessions Judge wag of opinion that as the search was illegal Hira Lal had every right to prevent it and when Sri Rastogi whipped out his loaded revolver and pointed it towards the villagers the respondents could have a reasonable appre. bension of its being used against them with fatal results and, therefore, in exercise of their right of defence of person and property they were justified in attacking the police party with their lathis with a view 'to deprive the Sub-Inspector of his revolver and thereby caused simple injuries to them. Accordingly he recorded an acquittal of the respondents.
9. learned Counsel for the State has not challenged the findings of facts arrived at by the learned trial Judge. It is, however, urged that simply because Sri Rastogi failed to observe the provisions of Section 165, Criminal P.C., inasmuch as he did not record in writing the grounds of his belief that the stolen property alleged to be in unlawful possession of Hira Lal could not have otherwise been obtained without undue delay will not make the search illegal, at the most it will amount to an irregularity which is curable under Section 537 of the Code. It is contended that as Sri Rastogi and his constables were acting in good faith under colour of their office while attempting to conduct the search although that act may not be directly justifiable by law the respondents will have no right of private defence against them, more so because there could be no reasonable cause for the apprehension of death or grievous hurt to them even when Sri Rastogi bad whipped out his loaded revolver. Reliance in this regard was placed on Section 99 of the Indian Penal Code. We, how, ever, find no substance in these arguments.
10. The relevant portion of Section 165, Criminal P.C., reads as follows: --
165 (1) Whenever an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for, the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he in attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or-cause search to be made, for such thing in any place within the limits of such station.
165 (5) Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizanse of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate.
11. It is settled law that the safeguards, incorporated by the Legislature in Section 165 are mandatory and not directory. They must be carried out immediately and fully as nearly as possible in the circumstances of each case. The provisions of Clause 5 of Section 165 are intended to prevent roving searches and they must be complied with by a police officer before he embarks on carrying out the search.
12. In the case of State of Rajasthan v. Rehman : 1960CriLJ286 , it was observed that:
Section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches. If that can be ignored, it cannot be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure, it would be a search made in contravention of the provisions of the Code.
13. In the case of Radha Kishan, 1968 SC 822 it was inter alia observed that where the provisions of Sections 108 and 165 of the Criminal P.C., are contravened the search can be resisted by the persons whose premises are sought to be searched.
14. In view of the aforesaid dictum it must be held that the search proceedings started by Sub-Inspector Rastogi were illegal and the non-observance of the salutary provisions of Section 165, Criminal P.C., did not amount to an ordinary irregularity curable under Section 537 of the Criminal P.C. Moreover Section 537 in terms is not applicable to the facts of this case.
15. In the case of Ram Parves Ahir v. Emperor AIR 1944 Pat 228 a Division Bench of the Patna High Court held that
in the first place, the officer about to make the search is required to record in writing the grounds on which he believes that the thing to be searched for is necessary for the purpose of the investigation and that it cannot be otherwise obtained without undue delay; and the second requirement is that in such record of the grounds of his belief he shall specify the thing for which search is to be made, or to because to be made. This latter provision is clearly intended to restrain a police officer from initiating or conducting anything in the nature of a general search.
In this case a Sub. Inspector of Police having been instructed by the officer incharge of the police station went to conduct the search of a house. He was, however prevented by a mob from conducting the search. The police party accompanying him fired guns in the air to scare the mob. That had no effect. Then the Sub Inspector gave order for the gun to be fired at the mob. For some reason this was ineffective as the shot misfired. Thereafter the mob pursued the police party and severely assaulted them. The Court held that as the particular Sub. Inspector was not entitled to search the home of any one unless he had first received from an officer incharge of a police station or an officer making an investigation, a written authority specifying the house to be searched and the thing to be searched for, it was not possible to hold that he was unaware of the requirements of Sub-section (8) of Section 165, Criminal P.C., and therefore, he cannot be held to have been acting at the time under colour of his office within the meaning of first part of Section 99 of the Indian Penal Code. It was observed further that it was difficult to hold that he was acting in good faith and, therefore, the second part of Section 99 was also not attracted to the case. Accordingly the conviction and sentences of the appellants under Sections 383 and 147 read with Section 149 of the Indian Penal Code as recorded by the trial Judge were set aside.
16. A similar view was taken in the case of Emperor v. Mohammad Shah AIR 1946 Lah 456.
17. In the case of Pagla Baba : AIR1957Ori130 a Division Bench of the Orissa High Court held that where the entry of the police party into a Math for search of aims and arrest of some of the inmates of the Math was not authorized by law, the police party cannot be held to have acted in due discharge of their duties and under process of law and consequently resistance to their action to attempt to arrest or to seize the property cannot be an illegal act so as to make the members resisting members of an unlawful assembly and further Section 99, Indian Penal Code, was inapplicable, where the action of the Sub. Inspector of police was wholly without jurisdiction.
18. In view of the principles of law affirmed in the aforesaid decisions it is obvious that Sri Rastogi had no jurisdiction to conduct the search of the house of Hira Lal and Hira Lal had every right to prevent him from entering his house. On the facts found established by the Court below it is also obvious that when the Sub Inspector Rastogi whipped out his loaded revolver and pointed it towards Hira Lal and his companions the respondents must have entertained a reasonable apprehension of death or of grievous hurt being caused to them and in that situation their assault on the police party will be protected by their right of private defence of person.
19. In the result we do not find any merit in this appeal and it is dismissed.