1. This is an application for revision by Bhiku Gir and Narottam Gir from an order of! the learned Sessions Judge, Saharanpur, who dismissed their appeal from an order, of conviction passed by a Magistrate, First Glass, of that District, sentencing the applicants to six months' rigorous imprisonment for an offence under Section 332, I. P.C. The sentence was reduced to three months' rigorous imprisonment on appeal by the learned Sessions Judge. It appears that on 24th March 1931, B. Munshi Lal, the Excise Inspector, received information that the applicants were in possession of illicit liquor. He obtained the assistance of the Police Inspector, the Sub-Inspector and two constables for the purpose of raiding the house of the applicants and searching it. They sent for four witnesses who, it should be noted, were not men from the locality but from different villages. This was a contravention of the provisions of the Code of Criminal Procedure, but it is explained that the witnesses from the locality were considered liable to be won over by the applicants. At this stage however this aspect of the matter is not material.
2. It is in the evidence of the Excise Inspector that the police officers, the Excise Inspector and the four search witnesses formed themselves into two parties and proceeded to enter the house through two-different entrances. The police constables Tafazzul Husain and Lokram had been-posted near the house to prevent anyone ' entering into the house. The applicants,, who had been previously made to search the persons of the witnesses, the police-officers and the Excise Inspector were-sitting at their baithak a short distance' away, proceeded to enter into their own house, which was about to be searched by the party. The constables prevented them, from entering into the house saying that, they should enter it after the search was-over. This conversation was heard by the police officers present, as is apparent from the evidence of the Excise Inspector,., but none of them declared that the applicants were entitled to be present inside the house at the time of the search though not before it. On the other hand, they tacitly endorsed the insistence of the constables that the applicants should not enter the house before the search was over. On a scuffle which ensued there, was an exchange of blows between the applicants and the constables, with the result that the applicants received no less than 12 injuries and the two constables received two 'slight but definite injuries.' (This is the description of the injuries given by the learned Magistrate). The. applicants were overpowered by the police party. They were held in custody outside the house during the time search was made inside their house. Subsequently the applicants were prosecuted for an. offence under Section 332, I.P.C. The learned: counsel for the applicants contends that; an offence under Section 332, I.P.C., is not made out in view of the evidence led on behalf of the prosecution. He points out: that the learned Sessions Judge, who reduced the sentence, was inclined to the view that the action of the police was. somewhat highhanded. He remarked:
It is easy to understand that appellants die not like the idea of the house being searched in their absence, especially when they had some-money buried under the floor. The police were perhaps not quite justified in keeping the appellants out of their house, but they did EO before the search began when they wanted to keep out all strangers and even the inmates of the house' from rushing inside and destroying all traces of excisable articles.
3. I have been through the evidence of the Excise Inspector and of the Sub-Inspector, and think that the learned Sessions Judge has not quite accurately re presented what happened when the scuffle ensued. It is not, and this fact is to be -emphasized, that the applicants were directed not to enter the house before the search and that they were permitted to fee present at the time of the search. If this had been the position and the applicants had intended to forestall the search party with the intention of removing excisable articles, the case would have been different. The view of the police, obviously based on the ignorance of the provisions of Section 103, Criminal P.C. was that they were entitled to keep out every one including the owner or occupier of the house before and at the time of the search. They persisted in this view and attempted to debar the applicants absolutely from entering into the house till after the search was over. This was in the teeth of the provisions of Section 103, Criminal P.C. which lays down that
the occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.
4. The question at which the applicants on the one side and the police constables supported by the police officers and possibly the Excise Inspector, on the other, were at variance was whether the applicants had a right to go inside the house at the time of the search. The question of course, arose before the search party entered into the house. The applicants maintained that they had; the search party, on the other, held otherwise. The result was an exchange of blows between the constables and the applicants who had the worst of it, having received many more injuries than the constables did. The facts being as stated above, the next question is whether the applicants should be considered to be guilty of an offence under Section 332, I.P.C., which makes causing
hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, punishable.
5. If public servants, in this case, the constables, acted not in the discharge of their duty, which was to allow the applicants to enter into the house and be present at the time of the search, but in contravention of the mandatory provisions of Section 103, Criminal P.C. and were obstructed, Section 332, I.P.C. cannot apply. The applicants were justified in insisting on their right to go inside the house and be present throughout the search. Their anxiety, as pointed out by the learned Sessions Judge, was natural, in view of their money being buried underground in many parts of the house which was to be searched. If therefore they caused hurt in attempting to go into their own house on physical resistance being offered by the constables, who were not justified in doing so, they cannot be held guilty of any offence under the Penal Code. I am fortified in the view I have taken _by the case of Nirmal Singh v. Emperor  42 All. 67. The applicants have already served about two and half months out of three months' rigorous imprisonment awarded by the learned Sessions Judge. In the view of the case I have taken this revision is allowed. The conviction and sentence passed on the applicants are set aside. They shall be forthwith set at liberty.