P.V.B. Rao, J.
1. These two appeals No. 85 by Pagla Raba and No. 97 by eight persons, namely, (1) Bairagi Cha-ran Das, (2) Achhebar Dubey, (3) Sidheswar Panda, (4) Chintamani Das, (5) Pitambar Das, (6) Khetramohan Das, (7) Fakir Charan Sahu and (8) Gadadhar Das were filed against the same Judgment and were heard together. All these nine accused persons, along with five others acquitted by the learned Sessions Judge, were tried on charges under Sections 147, 302, 302/149, 333, 333/149, 332, 332/149, 148/109 and 302/109 of the Indian Penal Code.
2. All the accused persons were charged under Section 147, I. P. C. Accused Lakshman (acquitted) stood charged under Section 302, I. P. C. and all the other accused persons were charged under Section 302/149, I. P. C. Accused Bairagi, Fakir, Chintamani, Pitambar, Tarini, Khetramohan and Achhebar were charged under Section 333, I. P. C. The rest of the accused persons were charged thereunder read with Section 149, I. P. C. Accused Sidheswar was charged under Section 332, I. P. C. and the rest of the accused persons were charged for the same offence read with Section 149, I. P. O. All the accused persons except Pagia Baba, Balkrushna Panda and Pornananda Behera were charged under Section 148, I. P. C. Accused Pagla Baba was also charged under Section 147 read with Section 109 and Section 302 read with Section 109, I. P. C.
3. Accused No. 1 Lakshman, No. 8 Tarini Prasad Singh, No. 12 Arjun Pradhan, No. 13 Balakrishna Panda and No. 14 Purnananda Behera were acquitted of all the offences of which they were charged. The first seven appellants in Criminal Appeal No. 97 of 1955--accused No. 2 Bairagi Charan Das, No. 3 Achhebar Dubey, No. 4 Sidheswar Panda, No. 5 Chinamani Das, No. 6 Pitambar Das, No. 7 Khetramohan Das and No. 9 Fakir Charan Sahu were convicted under Sections 148, 332 and 333 read with Section 149, I. P. C. and accused No. 11 Gadadhar Das (Appellant No. 3 in Criminal Appeal No. 97) was convicted under Sections 148, 332 read with Sections 149 and 333 read with Section 149, I. P. C. No separate conviction against each of these under Section 147, I. P. C. was recorded in view of their having been convicted under Section 148, I. P. C;
They were sentenced to various terms of rigorous imprisonment. Accused No. 10 Pagla Baba (appellant in Criminal Appeal No. 85) was convicted under Sections 147/109 and 332/109, I. P. C. and was sentenced to one year's simple imprisonment under Section 147/109. I. P. C. and two year's simple imprisonment under Section 332/109, I. P. C. The sentences of all the accused were directed to run concurrently.
4. In the last paragraph of the judgment, the learned Sessions Judge ordered that all the seized weapons from the Math and exhibited and bloodstained earth which has been seized be destroyed in due course.
5. The prosecution case is briefly as follows: At the eastern extrimity of Cuttack town and on the bank of the Mahanadi there is a Math popularly known as Kaliaboda Math or Gurukshetra. The head of this institution is Pagla Baba, the appellant in Criminal Appeal No. 85 of 1955. The Math has four gates on the four sides. On the east, south and west there are also houses constructed by the side of the compound walls and inhabited by certain persons. The other accused are alleged to be some of the residents of the Math. Pagla Baba was having many disciples, some of whom were respectable persons even including some medical men and advocates like late Mr. N.M. Das.
Just opposite to this Math, on the other side of the road lies the village Sikharpur inhabited by about 2000 persons. The villagers of Sikharpur go to the Mahanadi by passing the Math. On the northern side of this Math, the boundary wall 's not continuous and there are some passages. On the south, there is also a police outpost facing the main road from Jobra Anicut to Nayabazar to which about eight constables are assigned. It may also be stated here that it is admitted by some of the witnesses for the prosecution that the eastern gate is the main gate of the Math. It is alleged by the defence that the residents of Sikharpur are on inimical terms with Pagla Baba.
6. One Narayan Prasad Mohanty (P. W. 4) lodged an F.I.R. (Ext. A) on 2-7-54 at Mangalabag P.S. that he had been near the vicinity of the Kaliaboda alias Gurukshetra Math that day in the afternoon; and that four inmates of the said Math--accused Gadadhar, Chintamani, Bairagi and Fakir forcibly dragged him inside the Math, caused several injuries on him and also removed his cycle and caused damage to it and threw it out. On receiving this information, Sub-Inspector Gunanidhi Das (P. W. 21) registered a case under Sections 342. 323, 336 and 426 of the Indian Penal Code and went to the spot for investigation and it is alleged that when he wanted to enter inside the Gurukshetra Math, he was threatened by accused Bairagi and so he could not go inside.
The next morning P. W. 2 Debraj Patnaik, the officer-in-charge of Mangalbag P.S. accompanied by P. W. 21 second officer Gunanidhi Das again went to Kaliabada Math and accused Bairagi is alleged to have given them a similar deal this time also. Thereupon Debraj Patnaik reported to his official superiors to lend him armed police so that he could go inside the Math for the purpose of arresting the accused persons. Curiously enough, there was nothing further done with regard to the investigation of the offences disclosed in the F.I.R. (Ext. A) till 17th of July. On 17th of July, it is stated, the Superintendent of police, Cattack verbally informed P. W. 2 that he had passed orders for deputation of armed police under the charge of the Deputy Superintendent of Police, Cuttack.
The said orders are not filed in the case. P. W. 2 thereupon moved the Sub-Divisional Magistrate, Cuttack with petition (Ext. 10) for issue of a search warrant to seize the weapons that would be available at Kaliaboda Math and also all arms and ammunitions that might be available there. He is alleged to have placed before the Sub-divisional Magistrate along with the petition some case diaries (Exts. 20 to 20/4) and First Information Reports (Exts. A and 9) and the Sub-divisional Magistrate passed an order (Ext. 49) for issue of a search warrant (Ext. 11).
That very day the Superintendent of Police is stated to have written a letter (Ext. 50) to the Additional District Magistrate, Cuttack to depute a Magistrate since armed police was being sent to Kaliaboda Math. The Additional District Megistrate in a personal discussion with the Sub-Divisional Magistrate (P. W. 22) asked him to go in charge of (he police force. At 9-30 p.m. the Additional District Magistrate sent the letter of the Superintendent of Police requisitioning the presence of a Magistrate with the armed police endorsing on the same that Shri N.C. Naik had already been deputed.
This is Ext. 50 and curiously it was produced into Court by P. W. 22 from his own pocket when he was at that time serving at Baripada. About 4-30 p.m. in the afternoon, the Sub-divisional Magistrate contacted the Inspector of Police (P. W. 1) in his office at Lalbag as to when and by what conveyance they were to proceed. Later on that day at Mangalbag P.S., it is stated, that there was a conference of the Deputy Superintendent of Police (P. W. 27) the officer-in-charge of Mangalbag P.S. (P. W. 2) the second officer of the P.S. (P. W. 21), the officer in charge of Lalbagh P. S. (P. W. 11) and the Inspector of Police (P. W. 1) as to when to proceed and to detail the duties of different officers.
Several lathi constables were requisitioned from different outposts. It was also settled in the conference, as stated by the prosecution, that two witnesses should be taken in their company from Cuttack Town for purpose of effecting the search as suitable persons might not be available-on the spot at the early morning time when they planned to raid the Kaliaboda Math. It was also decided that none of the police officers except the armed police should take their shoes or leather materials inside the Gurukshetra Math and that armed police should not go inside until necessary.
All the police people assembled at Mangalbag P. S. at about 4 a.m. the next day, that is, 18-7-54. The Sub-divisional Magistrate also went there. P. W. 17, a resident of Mangalbag was sent for to act as a search witness, P. W. 23 another search witness was by chance going by the side of the Police Station at that time of the hour and was also requisitioned as the other search witness. The whole party proceeded in 3 vans leaving Mangalabag P. S. at about 5-15 a.m.
The police party consisted of the Sub-Divisional Magistrate, the Deputy Superintendent of Police, One Inspector of Police (P. W. 1), 5 Sub-Inspectors (P. Ws. 2, 11, 21 and 25 and another), one D. I. B. Sub-Inspector (P. W. 24), 30 lathi Constables with 3 Havildars and 8 armed constables with their Havildar. In all the police party thus consisted of 51 person out of which 5 persons were armed with loaded revolvers. Nine forming the armed police were armed with rifles and the 30 constables were armed with lathis.
They arrived at the Math at about 5-30 a.m. While coming down from the main road towards the outpost, the police party is stated to have seen that some Babaji was closing the western gate and that immediately thereafter there was sound of gongs and bugles. P. W. 1 the Inspector of Police, P. W. 2 the officer-in-charge of Mangalabag P. S., P. W. 11 the officer-in-charge of Lalbag P. S. and P. W. 25 another officer of Mangalabag P. S. together with 3 Havildars and some lathi constables went to the southern gate of the Math. The Sub-divisional Magistrate, the Deputy Superintendent of Police, the two search witnesses and the armed party with their Havildar as also Sub-Inspector Gunanidhi Das of Mangalbag P. S. went towards the western gate.
One Sub-Inspector Gadadhar and some constables went to the eastern gate of the Math. It is stated that it was agreed upon in the previous night that the party who would be going through the southern gate should first guard the armoury of the Math before others would come in. When the party reached the southern gate, it was found to be locked up from inside. The police party found there four Babajis moving near about the vicinity of Bisam Kutir inside the Math premises shown in the plan.
It is stated that calls were given at the southern sate to open the door and that the police party also announced at that time that their purpose was to seize arms and ammunitions inside the Math and to arrest the four accused who were named. Meanwhile the police party at the southern gate got information that both eastern and western gates were also closed, but none of the members of the party alleged to have been sent to the eastern gate was examined as a prosecution witness.
The police party broke open the southern gate and went inside the Math up to Bisam Kutir about 16 feet from the place where Pagla Baba. was sitting and Jagnaswari temple is less than S9 feet from that place, as can be seen from the plan. When they entered, they found Pagla Baba, the head of the institution, was seated on his Sarpa-padmasan on the verandah of the armoury which is shown in the plan and the Bhandarghar, accused Sidheswar was standing to his right with a sword in his hand, accused Achhebar was standing with a spear at the door of the armoury and accused Gadadhir was standing to the left of Pagla Baba with a sword and a shield.
They found accused Fakir, Bairagi and one Anam (deceased) in the verandah of ths Jageswari temple, a few paces apart and to the east of the Bhandarghar with the swords in their hands. Three Babajis including accused Lakshman and deceased Bhabagrahi were found inside the Dhunighar be the south of Bisam Kutir. Accused Lakshman had a Tenta and deceased Bhabagrahi had a sword. Thus, according to the prosecution story, there were in all nine persons seen by them inside the Math by the time the police party entered through the southern gate. Of the police party that entered through the southern gate, 3 were armed with loaded revolvers and the constables were armed with lathis.
They saw three of the persons to be arrested within 15 feet from them and the party consisted also of the Sub-Inspector who is the officer in charge of Mangalabag P. S. where the F.I.R. was lodged and who was entitled, according to their case, to arrest without a warrant. But curiously enough no attempt was made to arrest 3 of the 4 wanted persons who were in front of them. It is stated that looking at these nine persons at such a position, the police party said nothing there and P. W. 11 the officer in charge of Lalbag P. S. was deputed to the western gate to contact the Sub-Divisional Magistrate and the Deputy Superintendent of Police.
He appraised them of the situation whereupon the Sub-Divisional Magistrate and others came into the Math after breaking open the western gate leaving the armed police in charge of the Havildar at the gate to come in when callpd. The Sub-Divisional Magistrate and the Deputy Superintendent of Police came to the spot near Bisam Kutir and they seized up the situation. Even now, no attempt was made to arrest the wanted persons who were standing before them.. But the armed party being sent for, came into the Math with their shop's and leather materials. At the bidding of the Sub-Divisional Magistrate, Debraj Patnaik (P. W, 2) explained to Pagla Baba the purpose of their visit, viz.. to seize the weapons and arms and to arrest the four persons whom he named.
Pagla Baba replied none in the Math had committed an offence and none could be surrendered. But no police officer replied and stated to Pagla Baba that the four persons were wanted in connection with the report lodged by P. W. 4. The Inspector, the Deputy Superintendent of Police, the Sub-Divisional Magistrate and the two gentlemen present are stated to have, in their turn, explained to Pagla Baba, the position that it was better that the matter should be amicably settled & the wanted persons and weapons surrendered without any unpleasantness as the place was a seat of religion where they liked no disturbance to take place.
It is surprising that this negotiation was made not when thc police party which entered through the southern and western gates along with the Sub-Divisional Magistrates and the Deputy Superintendent of Police out of whom four were armed with revolvers, but was made only after the armed police entered the Math armed with rifles. It is stated by the prosecution that in spite of these persuasions. Pagla Baba was adamant and one witness stated that he used vulgar and insulting expressions against the police party.
It is also stated that Pagla Baba said that if force would be applied, a river of blood would flow there. Gadadhar who was standing to his left stated that hundred Akhyaonis of soldiers would spring up and would capture the Mlechhas and them. It is also stated that the four accused persons were named in the course of conversation with Pagla Baba and were asked to be surrendered whereupon it is stated that they heard a voice from the Jageswari temple side that they would not surrender without the orders of the Guru.
The Sub-Divisional Magistrate at last gave a warning that if within 3 minutes the wanted persons would not surrender and also the arms paid weapons, he would direct those things done by application of force. It is surprising that even at this state none of the police officers addressed the wanted persons, three of whom according to the prosecution were before them, to surrender. But they were only inducing Pagla Baba to surrender them. Some of the constables were attached to the Gurukshetra outpost and could recognise the Persons to be arrested. After this, the Sub-Divisional Magistrate wrote out an order in writing (Ext. 51) and handed it over to the Deputy Superintendent of Police to apply force to disarm the Sadhus and to seize all arms and weapons and to arrest the accused persons.
The Deputy Superintendent of Police thereupon asked the armed party to be ready and the Pagla Baba got up from his seat looked towards armed party of 8 constables took up positions with rifles loaded and bayouets fitted. They were, according to the plan, at a distance of about 30 feet from the place where Pagla Baba was sitting. It is stated that 4 of the armed constables stood facing towards north, that is towards the Bhandarghar, two armed constables at their back towards west and another two constables at the back facing towards east,
The lathi constables were brought to thc front and five of them with a Havildar formed a batch and two such batches were formed, one being placed in charge of P. W. 2 and another under the charge of P. W. 11. The lathi party was at a distance of about 16 feet from the place where Pagla Baba was sitting. It is stated that the Sab-Divisional Magistrate and the two gentlemen remained at the back of the armed party and the other officers took up positions in between the armed party and the lathi party. Under the orders of the Deputy Superintendent of Police, P. Ws 2 and 11 directed the lathi party under their charge to proceed, and when the lathi party covered a step, Pagla Baba got up from his seat looked towards the cast and moved his hand and said, 'Raktahadi Karidia' and he proceeded inside the armoury,
It is stated that immediately there was sound of gongs and bugles. Meanwhile the lathi party had covered about 3 to 4 steps when the three persons who wore standing on the verandah of the Jageswari temple, rushed upon the lathi party, accused Bairagi being in the frontmost of the three. Accused Bairagi then assaulted Havildar Guljar (P. W. 9) who was the easternmost member of the eastern lathi section in charge of P. W. 2. Next to Guljar was constable Kalandi (P. W, 14) who was attacked with sword by deceased Anam. Meanwhile Sidheswar, Achhaber and Gadadhar who were on the verandah of the armoury snd the Bhandarghar jumped towards the members of the police party and attacked them.
Accused Pitambar, Khetramohan and Tarini rushed to the scene from the western side, that is, the Sirastaghar and Bada Deul Side and attacked the members of the Lathi party and also the officers who were standing behind them. Then it is stated, the police officers found that some of the police constables had been badly injured and they had not been able to maintain their positions and that the safety of the officers themselves was in danger, some of them discharged shots from their revolvers against accused Bairagi, the deceased Anam, the accused Sidheswar and some other Babajis.
Anam fell down on. the scene. In the meanwhile there was also attack made by the Babajis who were inside the Dhunighar. The two constables P. Ws. 3 and 16 had been placed on guard in front of the Dhunighar. Rushing out of the Dhunighar, it is stated, accused Lakshman stabbed his Tenta into the belly of Puma Chandra Patnaik who was the southernmost constable in the western line of the two constables at the back of the four armed constables on the front line. When Lakshman dealt such a stab, he was immediately given a lathi blow by each of the constables P. Ws 3 ana 16, but he managed to run away with his Tenta in the western direction. It is stated that the deceased Bhabagrahi, in the meanwhile, rushed out of the Dhunighar chased some constable who was escaping by a passage at the west of Bisam Kutir and thereafter he wanted to assault the Deputy Superintendent of Police who was standing on the verandah of Bisam Kutir, whereupon the Deputy Superintendent of Police and some other police officers discharged revolver shots against him and he fell down.
It is stated that the armed constables could not also maintain their position when the Babajis were so attacking the other members of the police party. One of the armed constables (P. W. 12) and the Hayilciar (P. W. 15) received some injuries and they discharged some blank shots with a view to terrorise the assailants. While the assault was going on, some of the police constables fled away from the scene, some to the western gate and some towards the south. The Sub Divisional Magistrate and some other officers went back towards the south up to the Bakul tree, where the armed party again took position and discharged some blank shots into the sky with a view to terrorise the Babajis, and the whole episode came to an end within about two minutes.
All the injured police constables except those who had very minor injuries were sent in vans to the hospital for treatment. Constable Purna Chandra Patnaik died at the hospital while he was being taken to the operation table. Those of the police party who got minor injuries were examnied by a Police Doctor at the Curukshetra outpost. Further police forces were requisitioned and other senior police officers and Magistrates came up to the scene, tear gas was used and all inmates of the Math were called upon by microphone to surrender themselves, failing which they were informed of the use of the tear gas and its consequences.
Some of the inmates including some females surrendered and others were arrested after tear gas was used. The dead bodies of Anam and Bhabagrahi and also constable Puma Chandra Patnaik were sent for post mortem examination. Several of the accused persons who had got injuries were medically examined in the evening of that day. The Inspector (P. W. 1) drew up an F. I. R. at about noon of the day about 6 hours after the occurrence and before that he had seized several articles including blood stained earth and weapons from different places.
The arras were also seized. A search list was prepared and the next day investigation was made over to P. W. 30 who was then the Inspector-of Sadar Circle and who is alleged by the accused to be on very inimical terms with them. It may be noted here that though there is evidence that some bullets from rifles and revolvers were found striking the walls, no attempt was made by the prosecution to prove the places where they struck, to prove how many bullets were discharged from the rifles and the revolvers except the statement of the Havildar of the armed party that a report was given by him about the same.
7. The accused pleaded not guilty to all the charges. They stated that the injuries found on their bodies were post-arrest injuries having been caused by the police people after they were arrested. All the accused made individual statements giving their version of the occurrence, some also Pleading alibi.
8. Apart from these individual statements, the general defence story is that P. W. 4 Narayan Prasad Mohanty was not assaulted by any of the inmates of the Gurukshetra Math on 2-7-54 that he received minor injuries as a result of a cycle accident; that when he came to report about the accident, the police officers at Mangalabag P. S. who had previous grudge against the Babajis of Gurukshetra Math conspired with P. W. 4 who had also enmity with the Babajis and a false F. I. R. was made as a result of the said conspiracy; that it was not a fact that p. W. 21 went to Kaliaboda Math for investigation on 2-7-54 and that Bairagl Das threatened him.
They also denied that P. W. 2 went to Kaliaboda Math next morning that another F. I. R. (Ext. 9) was also lodged alleging that they had been pelting brickbats in the evening of 2-7-54 and 3-7-54 from the Math side at the Gurukshetra outpost; that such alarming stories were fabricated to requisition the armed police; that though there was no material with P. W. 2 that there were arms and ammunitions in the Math and though there were very scenty materials that there were weapons in the Math which were being used for offensive purposes, he moved the Subdivisional Magistrate for issue of a search warrant for seizure of arms and ammunitions and offensive weapons, that the Sub Divisional Magistrate did not use the proper judicial discretion required by law to issue such a search warrant; that it was untrue that when the police van reached the premises of Kaliaboda Math in the early morning of 18-7-54 some Babajis at the western gate closed it and immediately following thereto there was a ringing of gongs and bugles; that though the eastern gate was the main gate and it was remaining day and night open, the police party did not try to enter through that gate and with a view to humiliate the Babaji they forcibly broke open the southern Rate and also the western gate without giving any calls at either gate for opening them, that there was no demand made before breaking open the gates to either surrender the accused persons or the arms and weapons and no opportunity was given to remove the female members residing inside the Math premises; that in the course of conversation of the police party with Pagla Baba at no stage he used any offensive or threatening expressions; that he never said ''Raktanadi Bohijiba' or 'Raktanadi Karidia' nor did Gadadhar say what had been attributed to him about 'Sata Akhyomi' of soldiers etc; that when the Sub-Divisional Magistrate refused any enquiry and before the Police got ready for proceeding. Pagla Baba left the scene for his bed room; that after he left the scene, the polios party proceeded up to and over the verandah of the armoury and the Bhandaghar and assaulted accused Sidheswar ana Gadadhar with lathis; that by that time Sidheswar, Gadadhar and Achhebar had no weapons with them; that it was at this stage while the deceased Anam tried to act in self defence against such unprovoked assault, he was shot dead before he actually assaulted any of the police party and it was similarly just thereafter Bhabagrahi was shot dead before he had assaulted the police party; that it was thereafter accused Bairagi and some other Babajis picked up certain weapon in self protection and used them against the police party, as a result of which, a melee prevailed and in course of melee. Puma Chandra Patnaik got some bayonet stab from some of his own party men and it was not actually Lakshman who gave him any stab with the Tenta.
9. In short, the contention of the defence is that the case institutad by P. W. 4 was false to the knowledge of P. Ws 1 and 21, even if the case was true, they proceeded with a mala fide motive by giving a false colour to the conduct of accused Bairagi so as to requisition armed force and thus, they acted with no due care and caution in their proceeding to arrest the four Babajis involved in F. I. R. (Ext. A) that the issue of the search warrant was illegal and without jurisdiction and the method of executing it was also illegal; that the police had no right to break open the southern gate of the Math before demanding from Pagla Baba to give them access and surrender the arms and remove the female members particularly when the main gate, the eastern gate, was open; that no offer was made after their going inside the premises to give a personal search of themselves while going to execute a search warrant; that as the conduct of the police in trying to effect the seizure of the arms and the arrest of the accused was without due care and caution and was in consequence of an illegal search warrant, the right of private defence of person and property was available to the accused persons; that the police party first assaulted some of the Baibajis with lathis and from this conduct together with the array of arms, the Babajis did reasonably anticipate that death or grievous hurt might follow unless they acted in self-defence; and that the prosecution was guilty of suppression of material evidence both documentary and oral and the evidence for the prosecution was full of inconsistencies and ought not to be acted upon.
10. The case was tried by the learned Sessions Judge on 59 days, 31 witnesses were examined for the prosecution. The accused adduced no oral evidence. Both sides filed some documents which were exhibited in the case, but the prosecution failed to file certain important documents like the report of the S. D. M. to the District Magistrate about the occurrence which were relevant to the case and ought to have been produced and let in evidence by the learned special Public Prosecutor. P. Ws. 1 to 12, 14 to 16, 21, 24 to 28 and 30 thus in all 22 witnesses out of 3t are either police officers or consables. P. W. 13 and 28 to 20 are the search witnesses who were taken to the Math by the police in their van. P. W. 22 is the Sub Divisional Magistrate and P. W. 31 is a Sub Deputy Magistrate who held the test identification.,
P. W. 29 is a mason who was a search witness to some of the searches during the investigation. Of these, P. W. 7 is a formal witness who took the dead body of Purna Chandra for post mortem examination and made over the clothings to the police after the post mortem examination. P. W. 13 is the Medical Officer who examined Narayan Prasad Mohanty on 2-7-54 (Ext, 22) and the injuries on P. W. 2 (Ext. 17/4a) P. W. 22 (Ext. 197 2a). Accused Lakshman Ext (26), Bairagi (Ext. 27). Balakrishna (Ext. 28), Purnananda (Ext. 29), Chin-tamani (Ext. 3D), Tariui (Ext. 31), Khetramohan (Ext. 32) Arjun (Ext. 33), Achhabar (Ext. 34), Flt-ambar (Ext. 35), Sidheswar (Ext. 36). Fakir (Ext, 37), Pagla Baba (Ext. 38) and Gadadhar (Ext. 39) on 18-7-54. He also held post mortem examination on the dead body of 'Purna Chandra Patnaik on 18-7-54 (Ext. 23) and on the dead bodies of Bhabagrahi (Ext. 25) and Anam (Ext. 24) en 19-7-64.
P. W. 18 examined the injuries on P. Ws 12 (Ext 19/5a) and 15 (Ext. 19/3a) at the Gurukshetra out post in the morning of 18-7-54. P. W. 19 is another Medical officer who examined injuries on P. Ws 14 (Ext. 19/a), 6 (Ext. 19/1a), 10 (Ext. 19/ 6a) 5 (Ext. 19/7a), 9 (Ext 19/8a), 27 (Ext. 19/9a), 8 (Ext, 19/10a) and 11 (Ext. 19/11a). P. W. 20 is another Medical Officer who took the X' Ray photos (Ext. 41 series) of some of the injured persons. P. W. 28 is the Building Sub Inspector who prepared the spot map (Ext. 5). Of the Police witnesses. P. W. 30 is the investigating officer. Thug 13 persons of the police party received injuries, some grievous, one of whom died. 16 persons of the accused's party received injuries and two of them died. Injuries on the Babajis are mostly simple.
11. The learned Sessions Judge, after a discussion of the entire evidence in the case, found that there was ample evidence on record to show that there was friction between the inmates of the Math and Sikharpur people since 1950-51 and it was thereafter that the an outpost was established near the Math, All the police witnesses except the Building Sub Inspector and the constable P. W. 7 who carried the dead body to the Hospital are eye witnesses. The learned Sessions Judge held on the main charge under Sections 302 and 302/149 that it was not proved that Lakshman gave a Tenta blow to Purna Chandra.
There is considerable doubt whether the blow given to Purna Chandra was a Tenta blow or a bayonet blow as seen from the oral evidence and the post mortem report (Ext. 23) coupled with medical evidence. The prosecution witnesses stated that the person who gave the blow to Purna Chandra was a stout man but Lakshman is a lean, weak young man in his teens weighing 104 lbs. So the learned Sessions Judge acquitted all the accused of that charge, but convicted nine of the fourteen accused of various offences as stated above.
12. Ext. 23 is the post mortem examination report on the deceased constable Purna Chandra Patnaik. From the medical report and the evidence of the Doctor, it is doubtful whether the fatal injury on the deceased constable was caused by a Tenta or by a bayonet. Ext. 23 shows that there was one injury which is a penetrating wound 6' deep, triangular in shape, each limb measuring 3/4' on the left side of abdomen directed downwards, backwards and medial wards. Ext. 24 is the post mortem examination report of the deceased Anam belonging to the accused party.
He received four injuries out of which injury No. 2 is the fatal injury, and is a penetrating wound with inverted margins on the left side of back of the chest in the sixth intercostal space 6' long and 1/2'' in diameter. Injury No. 1 was a penetrating wound on the left side of neck 2' above the sternal end of clavicle 1/3' in diameter-inverted margins directed downwards and medially 6' long. Injuries 1 and 2 are the entrance and exit wounds of bullet.
The Medical Officer examined in connection with this was not in a position to state whether the injury received by Anam was from a revolver or from a rifle. He had two other injuries a lacerated wound oval in shape and an abrasion of the size of a rupee on the left leg below the knee. The post mortem examination report of the deceased Bhabagrahi of the accused party (Ext. 25) disclosed eight injuries, out of which, according to the medical evidence, injuries 1 and 2 are bullet wounds. Injury No. 1 was a bullet wound striking the collar bone and the bullet might have been reflected out,
Injury No. 3, according to the medical evidence, was probably caused by a pointed weapon, Injuries 4, 6, 7 and 8 are due to hard and blunt substance and injury no. 5 by a sharp cutting weapon. There is nothing in the evidence to knew with regard to the cause of deaths of Anam and Bhabagrahi. The Deputy Superintendent of Police (P. W. 27) is the only witness who stated that he killed these two persons by revolver shots in self-defence when they were running towards him to assault.
13. The learned counsel Mr. Kanungo, at the outset, argued that most of 'the eye witnesses in this case are police officers and constables. Their evidence, though it substantiates the prosecution story with regard to the injuries received bv the police party, ought not to be accepted inasmuch as all the witnesses are not credible witnesses.
(On consideration of the facts his Lordship held that the evidence of the police officers was not incredible and proceeded.)
14. Next the learned counsel for the appellants contends that the charges were not framed according to law and consequently the trial is vitiated. The first charge is against all the accused and is under Section 147 I. P. C. The first charge is clear and I do not find any defect. The second charge was with regard to the offences under Sections 302 and 302/149 I. P. C. with which we are not concerned as all the accused were acquitted of the same. The third charge was with regard to the liability under Sections 333 and 333/149 I. P. C; The fourth charge was with regard to the liability under Sections 332 and 332/149 I. P. C. The next charge is one under Section 148 I. P. C. and it is against 11 persons. The first charge against Pagla Baba is one under Section 147/109 and the other under Section 302/149 I. P. C. Mr. Kanungo contends that the second charge against all the accused is not according to law inasmuch as it was not stated in the latter part of the charge, relating to constructive liability under Section 302 I. P. C. that either the common object of the assembly was to cause murder or the members of that assembly knew it to be likely to be committed in prosecution of that object.
Similarly with regard to the third and fourth charges the ingredients necessary to make out liability under Section 149 I.. P. C. were not stated. According to Mr. Kanungo, the charge against the eleven accused persons under Section 143 I. P. C. is also not according to law as the common object was not specifically stated. With regard to the charge against Pagla Baba, the first charge under Section 147/109 and the second charge under Section 302/149 T. P. C. are not correct as the common object of the assembly, as stated in the first charge against all the accused, was not to cause assault oven to the extent of causing death. There is no charge against Pagla Baba for constructive liability under Section 332/149 I. P. C. The charges, as framed, are not complete as contended for by 'Mr. Kanungo. But I cannot accept his contention that on that account the trial is vitiated. In the light of the recent decisions of the Supreme Court, specially a decision reported in the case of Willie Slaney v. State of Madhya Pradesh (S) AIR 1956 SC 116 (A), in which the majority of the Judges held :
'In generality of cases the omission to frame a charge is not per se fatal. The very broad proposition that where there is no charge, the conviction would be illegal, prejudice or no prejudice, cannot be accepted as sound. The group of sections relating to absence of a charge, namely. Sections 225, 226 and 232 and the powers exercisable thereunder, are with reference to a trial which has already commenced or taken place. They would, therefore, normally relate to errors or omissions which occur in a trial that has validly commenced .....Sections 34, 114 and 149 of the I. P. C. provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one involving the direct liability and the constructive liability without specifying who are diretcly liable and who are sought to be made constructively liable. The absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offences, without a charge, can be set aside, prejudice will have to ba made out.'
In view of this definite pronouncement of the Supreme Court it is not necessary for me to refer to the other decisions quoted by both sides from the Bar. In this case the appellants were defended by two Advocates. The trial lasted for about 59 days and the prosecution witnesses were exhaustively cross-examined on all the charges with which the accused were convicted. I am of the view that no prejudice was caused to the accused and consequently the objection raised by the learned counsel for the appellants, about the defect in the charges, is not acceptable.
15. Next Mr. Kanungo raised another contention that the examination of the appellants under Section 342 of the Code of Criminal Procedure is. defective. He contends that most, of the points made out in the Prosecution evidence against the respective accused were not put to them, and they were not asked to explain. The questions put to each accused were very involved questions and they were not in a position to satisfactorily explain the points appearing against them from the evidence. We have gone through the examinations under Section 342 Cr. P. C. of each of the accused and the answers given by them. The questions are certainly, as contended by Mr. Kanungo, defective. But from the answers given by the accused and specially in view of the fact that they were all defended by counsel. I am of opinion that no prejudice was caused to any of the accused by the defective examination of the accused under Section 342 Cr. P. C. This is also a subject matter of decision of the Supreme Court in the case of Moseb Kaka Choudhury v. State of West Bengal (S) AIR 1956 SC 538 (B). In this case it was held by their Lordships of the Supreme Court,
'A judgment is not to be set aside merely by reason of inadequate compliance with Section 342, Cr. P. C.; clear prejudice must be shown. Where accused is represented by counsel at the trial and in appeal, it is upto the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. If the counsel is unable to say that his client had in fact been prejudiced and if all that he could urge is that there was possibility of prejudice, that is not enough.'
Mr. Kanungo no doubt explained, in what way his clients were prejudiced by this defective examination under Section 342 Cr. P. C., but we are not satisfied that under the circumstances of this case and in view of the very exhaustive cross-examination, the accused were in any way prejudiced in their defence by the defective examination under Section 342 Cr. P. C.
16. The next contention of the learned counsel is that the narration of events by the police witnesses for the prosecution is not according to the sequence of what actually happened in the Math. He contends that it was Police party that was the aggressor and whatever injuries were caused by the accused, if they were caused, were caused in exercise of the right of private defence. To appreciate this contention, it is necessary to see as to what, actually happened according to the evidence on the record. The general trend of the, evidence-is to the effect that one party of police officers and constables broke open the southern gate and entered the Math.
Finding Pagla Baba sitting on the Sarpa-Pad-masan with two Babajis on either side with swords and some two or three Babajis with swords near the Jagnswari temple, the party of police officers who entered the Math in the first instance did not do anything except some of them going towards the western gate and calling the Sub Divisional Magistrate and the Deputy Superintendent of Police after which the armed police party also was made to enter. Then negotiation began between the Sub Divisional Magistrate and Pagla Baba with regard to the surrender of the persons to be arrested and the arms and ammunitions. Pagla Baba stated that there was no person in his Math who committed an offence and he could not surrender the wanted persons as some of them had gone to bathe.
On finding that Pagla Baba was obstinate, it is the prosecution evidence that the Sub Divisional Magistrate wrote out an order (Ext. 51) to open fire if necessary and to seize the arms and to arrest the persons. This order was given to the Deputy Superintendent of Police and after that according to the prosecution case, the police party was arranged in order. The lathi party proceeded 2 or 3 steps after they were ordered to proceed to effect the arrest and seize weapons when all of a sudden the three persons from the eastern side Anam, Bairagi and Fakir rushed towards the police party who were taken by surprise and Bairagi initiated the first assault followed by Anam while the police party were still on the floor below the verandah of the Bhandarghar. But according to the contention of Mr. Kanungo, Sidheswar and Gadadhar who were on the verandah were first assaulted by the lathi party who went upon the verandah and it was thereafter, when Anam went to protect them and before be assailed any member of the police party that he was shot dead and immediately after that Bhabagrahi was similarly shot dead, and it was thereafter Bairagi and some other Babajis rushed with their weapons to the scene and there was an attack and counter-attack resulting in a melee. No doubt, the prosecution evidence, with regard to this aspect, is based upon the evidence of the eyewitnesses, The general tenor of the prosecution evidence is that the lathi party was in the front, then the police officers and then the armed police forming three lines north, west and east, and that the Sub Divisional Magistrate remained within the three lines of the armed forces and P. W.s 17 and 23 the two gentlemen witnesses were with him. But according to P. W. 1, the two gentlemen witnesses remained with the police officers. According to P. Ws. 17 and 22 the two gentlemen witnesses remained with the Sub Divisional Magistrate. According to the Sub Divisional Magistrate himself (P. W. 22), he, remained in front of the armed police, that is, near the police officers.
According to P. W. 25, the Sub Divisional Magistrate was with them and not behind the front line of the armed party. The prosecution witnesses have thus failed, to make out a consistent case regarding the relative position of the Sub Divisional Magistrate and the two gentlemen witnesses. The learned Sessions Judge did not attach any value to these discrepancies with regard to the position of the Sub Divisional Magistrate and regarding the question as to who started the 'assault first. In the First Information Report, it was mentioned that the armed police followed the lathi party while the evidence of all the prosecution witnesses is that the. armed party was stationary while the lathi party was proceeding. I do not think that the learned Sessions Judge is correct in holding that the contradiction arising on this point is not a matter that affects the merits of the case.
In order to determine whether the accused acted in exercise of the right of private defence of property and person, it is absolutely necessary to find out who started the assault first. There is also some divergence in the evidence of the prosecution witnesses regarding the direction in which the lathi party was proceeding. According to many of the prosecution witnesses, the lathi party was proceeding frontwards forming lines, but P. W. 25 stated that while proceeding, the lathi party constables were behind one another P. W. 17 stated that the constables went In different directions and not in a line.
The learned Sessions Judge brushed aside this discrepancy by simply stating that as both sides admitted that the lathi party proceeded, the discrepancies do not count. I cannot understand his reason. There is also inconsistency as to in what position the revolvers, lathis and rifles were being held by the police party, while the lathi party was proceeding in the march. P. Ws, 9 and 27 stated that the lathi constables were holding their lathis horizontally and frontwards when marching and some witnesses stated that they were holding the lathis in perpendicular positionjust by their sides. P W. 2 stated that the armed party was holding their rifles touching the ground and at stand-at-ease position. Some of the police officers stated that they held their revolvers in their pockets and others stated that they held their revolvers in their hands by that time. P. W. 27 stated that .some held their revolvers in hands and others in pockets.
The learned Sessions Judge, on this evidence, says that there is no reason to suspect that the witnesses are deliberately suppressing the truth on this account as to the position in which lathis, rifles and revolvers were held but holds that it has no necessary connection with the initiation of the assault, I think, in this the learned Sessions Judge is completely wrong. It is, the position in which the lathis, the rifles and the revolvers were held at the time of the march that has to b3 looked into in determining whether the accused had any right of private defence on the assumption that they could have such a right.
17. The original line of the lathi party was about 8 feet from the verandah and according to the prosecution case they had covered two or three steps when they received the attack. Most of the prosecution witnesses have stated that the lathi party was on the floor when assaulted. But P. W. 5 stated that he was assaulted by Chintamani while he was on the verandah near Sarpa-Padmasan. He stated that after they had stopped. Premananda Babu (P. W. 11) gave order to them 'Ja Uparaku, Semananku Dhara'' whereupon they went upon the verandah when they were surrounded by the Babajis from different directions.
But in cross-examination he stated that immediately after assault on Guljar he was assaulted and that Bairagi was on the verandah and Guljar was below and Bairagi assaulted him while facing the south. The learned Sessions Judge did not attach any importance to this evidence of P. W. 5 on the ground that it would be dangerous to discredit a large number of witnesses on this evidence, they having stated that the armed party was on the floor when the attack began. There is also some divergence in the evidence as to at what place Bairagi was when he first started the attack.
According to P. W. 10, Bairagi was on the verandah when he first attacked Guljar. According to P. Ws. 8 and 24, he was on the floor when he attacked Guljar. All these material discrepancies in the prosecution evidence as to who started the assault do not afford any justification for coming to a conclusion that the prosecution version that Bairagi started the assault is true. Another ground which the learned Sessions Judge stated for discarding these discrepancies which, in my opinion, afford some support to the defence theory, is that the suggestion of the defence counsel to various witnesses on this point was different.
Whatever the defence counsel suggested to the different prosecution witnesses in cross-examination, it cannot be denied that his main suggestion was to show that the prosecution party was the aggressor and the Babajis acted in self-defence. I am not convinced about the reason given by the learned Sessions Judge for discarding the material discrepancies in the evidence of the prosecution. It is also significant to note that Anam had no injuries on his body except the two gun-shot wounds. The evidence of P. W. 14 is that Anam gave him 3 cut blows. P. Ws. 27 and 14 deposed that Anam continued to assault for some time before he was shot dead. If that was so, Anam should have had more injuries on his body.
18. The learned Sessions Judge says that the police party was well armed with lathis, revolvers end guns and if they would have intentionally initiated the assault, they could not have possibly sustained so many injuries which were comparatively graver and more numerous than those on the other side.
In my opinion, the police party might have received many injuries even though they initiated the assault as in that case the Babajis would have acted desperately. As already stated, it is admitted by the prosecution witnesses that the assault began after the police party advanced 2 or 3 steps. From the above evidence, it appears to me that the first assault was by the police party. On the summary of the evidence on this point by the learned Sessions Judge and holding that the reasons given by him in coming to the conclusion that the Babalis attacked first are not satisfactory, I am of opinion that there is evidence on the statements of somp of the prosecution witnesses themselves that the aggressors were the police party. The Babajis behan the attack in desperation, finding 51 persons of the police party advancing against them and the armoury with loaded rifles and revolvers and lathis. Their attack undsr the circumstances appears to be in protection of their bodies and property.
19. Before taking up the other contentions raised by the learned counsel with regard to the existence or otherwise of an unlawful assembly and the right of private defence. I will deal with the case of abetmsnt by Pagla Eaba of the offences under Sections 147 and 302 I. P. C.
(His Lordship discussed the evidence and concluded:)
For the reasons stated above. I am of opinion that the prosecution failed to prove beyond all possibility of reasonable doubt that Pagla Baba was guilty of abetting the offences under Sections 147 and 302 of the Indian Penal Code.
20-22. The learned counsel for the appellants argued the appeal very strenuously and with ability two important questions. In the first place, Mr. Kanungo contended that the attempt to arrest the four persons concerned in the case reported by P. W. 4 was illegal and that the seizure also was illlegal. Consequently, the entry of the police party specially in the way in which it was made was also illegal and inasmuch as the attempt to arrest the persons and to seize- the property was not in due process of 'aw, the accused have not committed any offence. Secondly, he contended that as the attempt to arrest and to seize the property was illegal and as in the process of execution of these two the arrest and the seizure the police party, armed with rifles, revolvers and lathis advanced against the appellants, the appellants had a right of private defence of property and person and even on the assumption that they caused all the injuries complained of, they are not liable in law to be punished. I shall deal with these two contentions of the learned counsel in detail.
23. The first question which I will take up is with regard to the question whether the search warrant in this case was legally issued. Ext. 11 is the search warrant. It relates to the seizure of arms and ammunitions and also seizure of offensive weapons. Ext. 11 is as follows.
'Warrant to search after information of a particular offence.
(No. VIII Schedule V. Act V. 1898) (Section 96 of the Code of Criminal Procedure)
The Officer in charge, Manglabag P. 6. Cuttack.
Whereas information has been laid by the officer in charge, Mangalabag P.S. before me of the possession of arms and other offensive weapons such as spears, swords, arrows, bows etc, for unlawful purposes by Pagla Baba at 'Guru Khetra Math at Sikharpur and I am satisfied horn my enquiry that such weapons have been kept there for unlawful purposes and it has been made to appear to me that Pagla Baba should not be left in the possession of such arms without danger to the public peace. This is to authorise and require you to search for the said arms and ammunitions and other offensive weapons such as swords, spears, bows and arrows etc. in the premises of Gurukhetra in the possession and occupation of Pagla Baba and if found to produce the same forthwith before this Court; returning this warrant, with an endorsement certifying what you have done under it immediately upon its execution.
Given under my hand and the seal of the Court, this 17th day of July, 1954.
Sd. N. C. Naik,
S. D. M. Sadar, Cuttack.'
There is an endorsement on this search warrant dated 27-7-54 nearly 10 days after the issue of the warrant, in the following terms.
'Executed in presence or the S. D. M. Sadar, Cuttack on 18-7-54. During execution there was vehement opposition from the Babajis which resulted in rioting with murder vids Mangalabag P.S. Case No. 230 dated 18-7-54. The offensive weapons as mentioned in the S. W. have been seized: vide seizure lists enclosed with this case.'
It is significant to note that the weapons were not produced forthwith before the S. D, M. as directed in the search warrant. The order of the S. D. M. for the issue of the search warrant is Ext. 49 dated 17-7-54 to this effect,--
'Perused report of the O. I. C. Mangalabag P. S. for issue of a search warrant to search Guru-khetra Math in the possession and occupation of Pagla Baba for unlawful possession of arms, ammunitions and other offensive weapons. Perused the case records and station diary entries produced by the O. I. C. Manglabag P. S. I am satisfied from the documents produced before me that Pagla Baba has. in his possession arms, ammunition and other offensive weapons at Gurukhetra Math for unlawful purposes and it is desirable that he should not be left in the possession of such arms without danger to the public peace.
I therefore order that the Gurukhetra Math premises, including houses and temples in the possessions and occupation of Pagla Baba, should be searched and ammunition said other offensive weapons be seized. Issue a search warrant authorising O. I. C. Manglabag P. S. to this effect. I shall personally remain present during the search.'
It is significant to note that the search warrant does not contain any indication that the Sub Divisional Magistrate would be present at the time of the search though such a statement appears on the order sheet passed by the Magistrate for the issue of a search warrant. At the outset I may state that the learned Sessions Judge held that the search warrant is illegal under the Criminal Procedure Code but that it is legal under Section 25 of the Arms Act.
24. Section 25 of the Anns Act lays down,
'Whenever any Magistrate has reason to believe that any person residing within the local limits of his jurisdiction has in his possession any arms, ammunition or military stores for any unlawful purpose, or
that such person cannot be left in the possession of any arms, ammunition, or military stores without danger to the public peace,
such Magistrate, having first recorded the grounds of his belief, may cause a search to be made of the house or premises occupied by such person or in which such Magistrate has reason to believe such arms, ammunition or military stores are or is to be found and may seize and detain the same, although covered by- a licence, in safe custody for such time as he thinks necessary.
The search in such cases shall be conducted by or in the presence of a Magistrate or by, or in the presence of, some officer specially empowered in this behalf by name or in virtue of his office by the Central Government.'
Mr. Kanungo contends that the officer to whom the search warrant was issued was the Sub-Inspector Police Mangalabag P. S. (P. w. 2) and that he was not specially empowered in that behalf. The learned Sessions Judge seems to have accepted the contention by saying that, in the present case P. W. 2, to whom Ext. 11 was issued for execution, was evidently not an officer authorised by the Central Government and that if the matter rested there, it could be immediately said that the issue of the search warrant in his favour, so far arms and ammunition were concerned, was illegal.
But the learned Government Advocate contends that the Sub-Inspector of Police was an officer specially empowered in that behalf. He placed before us all the relevant notifications, regulations and other Acts which clearly show that the Sub-Inspector of Police (P. W. 2) is an officer speciallv empowered in that behalf namely, Notification No. 1874 P.D. dated the nth October, 1908 of the Bengal Government published in the Calcutta Gazette 1908, Pan I, at page 1701, Central Act No. VII of 1912 passed at the time when Orissa became a part of Bihar and Orissa and Regulation I of 1936 at the time when the separate province of Orissa was created and the various adaptation of laws orders. By these provisions the provision in the Bengal Notification continued to be in force even after the Constitution.
We are much Indebted to the learned Government Advocate for placing before us all these notifications and orders to show that the Sub-Inspector of Police is an officer specially empowered under Section 25 of the Arms Act. The learned Sessions Judge had not that advantage from the Special Public Prosecutor appointed in this case, in consequence of which he was obliged to commit a mistake by saying that P. W. 2 was not evidently an officer authorised by the Central Government to whom Ext. 11 was issued for execution.
The learned Sessions Judge is therefore wrong fn saying that the issue of the search warrant in favour of the Sub-Inspector, so far arms and ammunition are concerned, was illegal. But the learned Sessions Judge held that the search was legal, as according to the order recorded on the order sheet for the purpose of issuing a search warrant (Ext. 49), the Sub-Divisional Magistrate (P. W. 22) noted that he would be personally present at the search. Consequently the learned Sessions Judge held that the issuing Magistrate being actually present for the purpose of attending the search in pursuance of his order Ext. 49, the defect in addressing the search warrant to P. W. 2 did not appear to him to be material.
It does not appear to me to be correct. A Magistrate can conduct the search personally, but when he issues a search warrant in favour of another officer to conduct the same, his presence becomes immaterial as far as the legality or otherwise of the search warrant is concerned. It may also be noted that according to Ext. 50 the Sub-Divisional Magistrate went there as a party of armed police was sent to be in charge of the same. But any way in this case the search warrant cannot be said to be illegal for the reasons stated above on account of its being issued in the name of P. W. 2, though I hold it to be contrary to law for the reasons stated below.
25. Another ground on which the search warrant was attacked as illegal is that the imperative provision of law that the officer should state his reasons was not complied with in his order. Clause (3) of Section 25 of the Arms Act categorically says:
'Such Magistrate, having first recorded the grounds of his belief, may cause a search to be made of the house or premises occupied by such person'.
According to Ext. 49, the Magistrate stated that he was satisfied from the documents, produced before him. namely, the case records and the station diary entries. The order shows that he was satisfied that Pagla Baba had in his possession arms, ammunitions and other offensive weapons at GURukhetra Math for unlawful purposes but the grounds of his belief for so saying were not stated.
Issuing a search warrant is a judicial act. The records produced before him did not furnish any material for the belief that Pagla Baba was in possession of arms, ammunitions and other offensive weapons. Even the search made and the seizure effected after all the Babajis were arrested did not result in the seizure of any arms or ammunitions. Tho only result of the search was the finding of some weapons which can be designated as offensive weapons like swords etc. The learned Sessions Judge, in my opinion, committed an error in thinking that it is a subjective test.
The learned Sessions Judge himself stated in his judgment that neither in the station diary entries Exts. 20 to 20/4 nor in the case records Exts. A-and 9. was there any reference to existence of arms and ammunitions in Gurukhetra Math and the only document before the Magistrate making any reference thereto was the petition of the Sub-Inspector himself not supported by an affidavit. In that, the Sub-Inspector says:
'Besides it is strongly suspected that they have possessed some arms and ammunitions without licence for use against human beings'
and the source of his suspicion is not mentioned in his report.
The Bub-Divisional Magistrate (P. W. 22) stated in his cross-examination that after he perused the records, he had no discussion though P. W. 2 stated to the contrary. Though the learned Sessions Judge noted all these defects, he got over the question by simply saying that there was some material before the Sub-Divisional Magistrate to indicate that arms and ammunitions might be with Pagla Baba and the reason for his satisfaction on that material however inadequate it might be, could not be said to be without any foundation and the test being subjective, it could not be held that the Magistrate's order was illegal.
In my opinion, the failure to record the reasons for his belief is a grave defect and the order for search being a judicial order, the Court is competent to see whether there was enough material on record to justify the issue of a search warrant, specially when it was a search warrant not in connection with any property connected with the commission of an offence nor was it a warrant to seize unlicensed arms and ammunitions but a warrant to search and seize the general properties of a citizen, the possession of which, is guaranteed under the Constitution and he can be deprived of the same only under the authority of law, though the learned Government Advocate argued contra and relied upon a decision of the Supreme Court in the case of M.P. Sharma v. Satish Chandra. AIR 1954 SC 300 (C) in support of his contention that a search by itself is not a restriction on the right to hold and enjoy property and consequently the search warrant is legal.
It may bp noted that in this case it was also held by their Lordships of the Supreme Court that excepting in the limited class of cases falling under Section 165 of the Criminal Procedure Code, issue of a search warrant is normally the judicial function of the Magistrate. In the case of Queen Empress v. Sangam Lal, ILR 15 All 129 (D), it was held:
'Where a Magistrate issues a search warrant under Section 25 of the Indian Arms Act, 1878, it is necessary that he should record the grounds of his belief that the person against whom the warrant issued has in his possession arms, ammunition or military stores for an unlawful purpose.'
In the case of Walvekar v. Emperor, ILK 53 Cal 718; (AIR 1926 Cal 966} (E), a Division Bench of the Calcutta High Court held:
'The conditions precedent to the issue of a legal warrant, under Section 46 of the Calcutta Police Act. are that the issuing officer must have before him information on oath, and make such enquiry as he thinks necessary, and that he must have reason to believe that any house etc., is used as a common gaming house. A warrant which states that he has cause to suspect that certain premises are used as a common gaming house is invalid.. He must bring his judicial mind to bear upon the question and he can issue the warrant only if there is. in his opinion, reason to believe, that the premises are so used.''
It was also held that,
'Section 114. Illustration (e) (of the Indian Evidence Act) does not dispense with the necessity of proof of the preliminary conditions justifying the issue of the warrant. It means that if an official act is proved to have been done, it will be presumed to have been regularly done. Where certain things are required to be done by statute before any liability attaches in respect of any right or obligation, it is for him who alleges that it has been incurred to prove that the prescribed things have been. actually done, and no presumption arises as to their having been done.'
Consequently I am of opinion that the search warrant is not a legal warrant under Section 25 of the Arms Act.
26. The learned Sessions Judge held that the search warrant was not legal under Section 96 of the Code of Criminal Procedure. He stated that it was not the prosecution case that the search warrant was directed under the first two clauses of Section 96. Cr. P. C., and that it could at best come under the third clause, but there was nothing in the Magistrate's order as to purpose of what en. quiry or trial or other proceeding under the Criminal Procedure Code either in existence or contemplated was going to be served by the search so directed and consequently in his opinion the issue of the search warrant, so far as the offensive weapons were concerned, was illegal. The final conclusion of the learned Sessions Judge was that the search warrant was partly legal and partly illegal.
27. The learned Government Advocate very strongly contended that the search warrant was a legal warrant issued under Section 96 of the Criminal P. C. Section 96 of the Criminal P. C. is as follows.
'(1) Where any Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under Section 95, Sub-section (1) has been or might be addressed, Will not or would not produce the document or thing as required by such summons On requisition,
or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or oilier proceeding under this Code will be served by a general search or inspection,
it may issue a search warrant and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained. X X X'
The learned Government Advocate contended that the search warrant in question is essentially a warrant under Section 96, Cr. P. C. He contended in the first instance that it would come under the first para of Clause (1) of Section 96, Cr. P. C., as Pagla Baba might not produce the thing if required to produce the same by summons. Section 94, Cr. P. C. says that if any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any Investigation, inquiry, trial or other proceedings under the Code of Criminal Procedure by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. He relied upon Ext. 20 series in support of this contention and submits that they are required in connection with them. But I cannot accept his contention as there is no allegation in those documents that these weapons are concerned in those cases or they would not be produced if summoned.
28. Next the learned Government Advocate contended that it was a legal warrant under para 3 of Clause (1) of Section 96, Cr. P. C. and strongly relied upon a decision of the Judicial Committee reported in the case of Clarkke v. Brojendra Ki-shore. ILR 39 Cal 953 (PC) (P). In that case the Judicial Committee held that the search which was the subject-matter of the appeal before their Lordships was warranted by the Code of Criminal Procedure, and a serious offence had been committed against the public tranquillity into which it was the duty of the District Magistrate to enquire, and by virtue of his superior rank he was. at Jamalpore. the proper person to conduct the enquiry, and by Section 36, Schedule III, and Section 96 of the Code the power of issuing a search warrant was among his 'ordinary powers' and therefore under Section 105 he had power to direct a search to be made in his presence if he thought it advisable to do 60.
The appellant before their Lordships filed the appeal against an appellate decree of the High Court of Calcutta directing him to pay damages for trespass. The appellant was a District Magistrate. There was a Hindu-Muslim rioting and the appellant as District Magistrate was sent for and on his arrival he decided that it was necessary to search the cutcherry to obtain possession of the arms used which, it was reported, were concealed there and also for the purpose of and in connection with the investigation of the offences committed. The cutcherry was found locked and as no officer or servant of the zamindar could be found, it was broken open by the District Magistrate's orders and instructions and a search was made therein by the Deputy Superintendent of Police and the men acting under his orders.
Their Lordships held that the District Magistrate was competent to Issue a search warrant as it was one of the powers of a District Magistrate under the third Schedule of the Criminal Procedure Code and that under Section 105, any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant and relying upon the third clause of Section 96, held that the appellant did not commit any trespass as he wss competent to search. In the appellate judgment of the Calcutta High Court, Harington J. observed :
'In my opinion Section 96 only authorises the Magistrate to issue a search warrant when sitting as a Court, i.e., when some proceeding under the Code has been initiated before him. And this view is strengthened by the form of the search warrant given in Schedule V which recites that information has been laid or complaint has been made.'
On this observation, their Lordships said:
'If his Lordship had read to the end of the form in Schedule V he would have seen that it disposes of his theory altogether. The form contemplates the issue of a search warrant before any proceedings of any kind are initiated and in view of an enquiry 'about to be made'.'
29. The form referred to in the Criminal Procedure Code is one under Section 96. Paras 1 and 2 of Clause (1) of Section 96 refer to summons to produce documents or other things, referred to in Sections 94 and 95. These two Sections 94 and 95 clearly contemplate their production for the purpose of any investigation also. Para 3 of Clause (1) of Section 96 is confined only to enquiries, trials or other proceedings under the Code. The form which is given in the Schedule and referred to by their Lordships of the Judicial Committee is a form contemplated to cover the entire Clause (1) of 8. 96 including paras 1 and 2.
Therefore it may be so worded as to include warrants to be issued under paras 1 and 2 of Clause (1) and if the warrant is issued under the said, Daras. which can be issued during the stage of investigation, the words within brackets in the form 'about to be made' refer only to the warrants issued under para 1 of Clause (1) of Section 96. In that view of the matter, it may be that para 3 contemplates only an enquiry and does not include an investigation.
30. But in the case of In re, Mahomed Vahir, AIR 1934 Bom 104 (G), the decision of the Judicial Committee in ILR 39 Cal 953 (PC). (F) was considered and the learned Judges of the Bombay High Court held that the observations of Lord Machaghten quoted by them and the form of the warrant prescribed in the schedule do negative the contention that there must necessarily be a proceeding actually pending before the Magistrate at the time of issuing the warrant and that a warrant may be issued for the purpose of an enquiry about to be made, provided it is an inquiry either being made or about to be made otherwise than under the Code.
The learned Judges in this case were only considering whether a search warrant under Section 96 of the Criminal Procedure Code could be issued for an offence under the Sea Customs Act. In the case of K. Hoshide v. Emperor, 44 Cal WN 82: (AIR 1940 Cal 97) (H), it was held that
'The Court, however, has power to issue a search warrant for the purpose of an enquiry or trial or other proceedings under the Code, whether actually pending or anticipated and yet to be embarked upon.'
Following the observations of the Privy Council In ILR 39 Cal 953 (PC, (F). But it was also held that:
'But such a warrant cannot be issued merely to help an investigation and ought not to be issued lightly as a matter of course on the bare statement of the police that a search is necessary. It can be issued only when the Magistrate, acting as a Court, applies his judicial mind to the question and on a consideration of proper and sufficient materials, comes to the conclusion that for the purposes of an enquiry or trial or other proceeding under the Code, seizure and inspection by means of a general search is necessary.
In the case of Messrs. Kalinga Tubes Ltd. v. D. Suri, 19 Cut LT 103: (AIR 1953 Orissa 153) (I), a Division Bench of this Court held that:
'While the absence of the word 'investigation' in Clause (iii) of Sub-section (1), Section 96 indicates the requirements of a higher and stricter standard for general searches, it cannot be said, as a matter of law, that a general search cannot be ordered before an investigation under Chapter XIV of the Criminal Procedure Code has been commenced.
What is necessary in such cases is that the Magistrate should be reasonably satisfied that the search is likely to be a link in the chain which ia the normal course will lead to an enquiry under the Criminal Procedure Code if the expected material is found on the search, and that he should also be satisfied that there is reasonable ground for the expectation.'
and relief upon ILR 39 Cal 953 (PC) (F). In that case, it was conceded before the learned Judges that in view of the Privy Council case in ILR 39 Cal 953 (PC) (F), the actual pendency of any enquiry by a Court under the Code is not necessary to the validity of the issue of a search warrant and the learned Chief Justice observes:
'The phrase for purpose of in Clause (iii) of Sub-section (1) of Section 96 which is a very comprehensive term is not to be construed as meaning during the pendency of. All that is necessary is that the Court issuing the search warrant should consider on reasonable grounds that the purposes of any inquiry, trial or other proceeding under the Code will be served by a general search.''
In this case it was presumed that the form in the Criminal Procedure Code applies to all the three paras of Clause (1) of Section 96. In the course of the judgment, it was observed that the Court can see whether the Magistrate applied his mind judicially to the materials before him before issuing a search warrant and his Lordship observed:
'While no doubt the Magistrate is not to issue a search warrant merely because a police officer however high placed asked for it, it is not as though the police officer's statement as to the effect of the inquiry so far made by the police is to be totally disregarded and that no weight is to be attached thereto,..... All that we have got to do is to scrutinise whether the Magistrate applied his mind judicially to the materials before him, in the light of the requirements of law and not to sit in judgment over his opinion.'
Mr. Kanungo contends that even if on the authority of these cases the Court can issue a search warrant in an anticipated enquiry, yet the act being a judicial act, as was held in those cases, must be issued only after the Magistrate applies his judicial mind to the question and on sufficient and proper materials comes to the conclusion that search is necessary. Mr. Kanungo contends that the pending enquiry in this case being one under the Arms Act & there being no material on which the Magistrate could have acted upon judicially, the search warrant issued by the Magistrate is not a legal warrant. In my opinion, his contention is correct and the search warrant issued in this case on the basis of Ext. 20 series is not a legal warrant even under Section 96 of the Criminal Procedure Code.
31. The search warrant being thus illegal both under Section 25 of the Arms Act and Section 96 of the Criminal P. C. as the warrant was issued under Section 96, Cr. P. C. and a proceeding under the Arms Act was not a proceeding under the Criminal Procedure Code and was not pending at that time and as also the Magistrate did not record his reasons in writing before the issue of such a warrant, Mr. Kanungo contends that the search warrant was without jurisdiction and therefore to resist such a warrant is not an offence and it does not authorise the police officers to trespass upon the Math.
32. With regard to the apprehension of the four accused persons Gadadhar, Chintainani, Bai-ragi and Fakir as per the report made at the Mangalabag P.S. by P. W. 4 for which purpose also the police party entered the Math, Mr. Kanungo contends that the officer in charge of the Man-galabag P. S. (P. W. 2) had no legal authority to enter the Math for that purpose, as there was no report of a cognizable offence before him, in which case only a police officer can arrest, without a warrant. Admittedly there is no warrant by a Magistral to arrest In this particular case. He also contends that this attempt to arrest was also actuated by malice and is not a result of due care and caution, but is simply mala fide.
33. Exhibit A is the First Information Report made by P. W. 4. The report was made on 2-7-54 at 6-10 p.m., date of occurrence being 2-7-54 at 5 p.m. The case was registered under Sections 342, 323, 336 and 426, I. P. C. The substance of information given was that P. W. 4 was given a beating with the butt end of a Khanda after being carried into the Math and that he came away running. It is also stated that the cycle of his companion was also broken with a Khanda. Mr. Kanungo contends that on this information, there, is absolutely no case made out to register a case under Section 336. I. P. C. and that the said registration of the case under Section 336, I. P. C. was mala fide and not in good faith.
Under Section 336. I. P. C. whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished. This is a cognizable offence. In my opinion Mr. Kanungo is correct as far as his contention relating to Section 336, I. P. C. is concerned. There is absolutely no allegation in Ex. A to make out a case under Section 336, I. p. C. Neither rashness nor negligence is stated anywhere in the report. With regard to the registration under Section 342, I. P. C., Mr. Kanungo contends that the First Information Report does not make out a case under Section 342, I. P. C., and that was also deliberately inserted for the purpose of .making it cognizable.
The other two offences stated in the First Information Report are not cognizable offences. There is absolutely no allegation of wrongful confinement in the report made by Narayan Prasaci Mohanty (P. W. 4). The learned Government Advocate very strongly contended that on the report in this case which shows that P. W. 4 was carried away into the Math, the case comes under wrongful confinement. He relied upon a decision of the Madras High Court in the case of Parankusam Narasaya Pantulu v. Captain R. A. C. Stuart, a Mad HCR 396 (J). In that case it was held that:
'The retaining of a person in a particular place or the compelling him to go in a particular direction by force of an exterior will overpowering or suppressing in any way his own voluntary action, is an imprisonment on the part of the person exercising that exterior will.'
He quoted also a decision reported in the Case of Madala Feraiah v. Voruganti Chendriah, 1952-1 Mad LJ 164: (AIR 1954 Mad 247) (K). In that case it was held:
'In a wrongful restraint there need not be any stoppage of the movement; it may be directed into a channel different from the direction in which the victim intends to move. Physical presence of the obstructor is not necessary; nor is an actual assault necessary and fear of immediate harm restraining a man out of a place where he wishes to be and has a right to be is sufficient to constitute an offence under this section. The slightest unlawful obstruction to the liberty of the subject to go when and where h likes to go, provided he does so in lawful manneer cannot be justified and is punishable.'
In the case of Gopala Reddi v N. Lakshmi Reddi. AIR 1947 Mad 124 (L), it was held.
'The voluntary obstruction of a cart in which a person is travelling amounts to wrongful restraint of the person who is in the vehicle. The fact that the person may be allowed to get down and then be left at liberty to proceed on his way unmolested is immaterial. If the person is prevented from proceeding at the moment of restraint the terms of Section 339 are satisfied and the offence of wrongful restraint is committed.'
In my opinion these three decisions do not help the learned Government Advocate to bring the case of P. W. 4 either under Section 341 or Section 342, I. P. C. The word 'obstruction' or 'restraint' implies a desire to proceed in a certain way no movement of the body, but a desire, to cause motion. If. therefore, there was never any such desire, there could be no obstruction, though the accused may have intended it, and even expressed his intention to restrain another should he move from his present position-and wrongful confinement is a species of wrongful restraint.
In Ext. A. there is no allegation that P. W. 4 had any desire to go in any direction. He was simply carried away by three persons and given a beating after which he ran away. I cannot accent the contention of the learned Government Advocate that for the period during which the beating was given, he was restrained or confined and therefore there is an offence made out under Section 341 or Section 342, I. P. C, both of which are cognizable.
In every case of assault or hurt, certainly there will be a momentary restriction of the person injured but the gist of the offence either under Section 341 or Section 342, I. P. C. is that there must be a restraint when there is a desire to proceed' in a Particular direction. Consequently, in my opinion, there is no case in Ext. A for being registered also under Section 342, I. P. C., Under Section 54. Clause (1) of the Criminal P. C., any police officer may, without, an order from a Magistrate and without a warrant, arrest 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,
In this case, in mv opinion, there is no reasonable complaint nor credible information nor a reasonable suspicion of the four accused persons Gadadhar. Chintamani, Bairagi and Fakir having been so concerned. Though there may be some scope for contending that there is a reasonable suspicion that an offence under Section 342, I. P. C. is made out, yet the inclusion of Section 336, I. P. C, also in Ext. A clearly negatives the absence of any such, as on the face of it there is absolutely no ground to include Section 336, I. P. C.
Under Section 154, Cr. P. C. an officer in charge of a police station can register the case of a cognizable offence, but under Section 155, Cr. P. C. when an information is given to an officer in charge of a police station of the commission of a non-cognizable offence, he can only enter in a book to be kept the substance of such information and refer the informant to the Magistrate. In the case of Mani Mohan Ghose v. Emperor, AIR 1931 Cal 745 (M). it was held:
'Whether an information relates to the commission of a cognizable offence depends, not even on what the police officer thinks, but on what the informant says. By the word 'relating' is meant that there need not be complete or satisfactory proof or evidence given at the time; it is sufficient if it indicates that a cognizable offence has been committed. But until there is this indication to such an offence..... But the Indication must be there.'
In the case of K.V. Muhammad v. Chakkappayyan Kannan, AIR 1943 Mad 218 (N), it was held that the word 'reasonable' in the expression 'reasonable suspicion' should be understood to mean a bona fide belief that an offence had been committed or was about to be committed, necessitating the arrest of the person concerned. In the case of Tribhawan Singh v. Rex, AIR 1949 Oudh 74 (O), Justice Walford holds;
'In order to Justify a police officer taking action under the first clause of Section 54, Cr. P. C., there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a reasonable complaint or reasonable suspicion must depend upon the circumstances of each case but it should be at least founded upon some definite fact other than personal feelings tending to throw suspicion on the person arrested and not on a mere vague surmise. The term 'reasonable suspicion' does not mean that the police are limited only by their own discretion as to what persons they may arrest without a warrant. Their powers In this respect are strictly defined by the Code and where there is personal enmity between the police officer concerned and the person arrested, a very high standard of evidence would be required to prove that the police officer acted in good faith in arresting the person, when the police officer had received no information worth the name or had not come into possession of any facts which could reasonably give rise to the inference that the person arrested had been concerned in any ways in committal of the offence.'
In the matter of Charu Chandra Mazumdar, ILR 44 Cal 76: (AIR 1917 Cal 253) (P), it was held:
'Section 54 of the Code of Criminal Procedure gives very wide powers and ought to be rigorously construed. 'Reasonable suspicion' or 'credible information' upon which an arrest can be made by a police officer under Section 54. must be based upon definite facts and materials placed before him. which the officer must consider for himself, before he can take any action under that section. He cannot delegate his discretion, or take shelter under another person's belief or Judgment, but must act on his own personal responsibility.'
Mr. Kanungo contends that it is for the purpose of enabling him to investigate into the case under Section 156, Cr. P. C. that Sections 342 and 336, I. P. C. were inserted in the First Information Report and such insertion therefore is according to him under Section 157. Cr. P. C, to proceed to investigate and to take measures for the discovery and arrest, of the offender, but even under Section 157, Cr. P. C. It is necessary that the officer in charge of a police station should have reason to suspect the commission of an offence which he is empowered to investigate.
34. Thus it is clear that the authority for the entry to effect the anticipated arrest of the four persons Gadadhar, Bairagi, Chintamani and Fakir Is absent. Therefore, the police party is not entitled to enter the premises of the Math for the purpose of effecting the arrest.
35. Consequently both the points contended for by Mr. Kanungo that the search warrant is not legal and that there is no reasonable suspicion against the four persons of having committed a cognizable offence to authorise the police to enter the Math, are, in my opinion, correct.
36. Next the learned counsel submits that the action of the police party in entering the Math for the two purposes of arrest and seizure was without jurisdiction and was not in due process of law and so resistance to the same is not an offence.
37. In the case of Emperor v. Nazir Ahmad, AIR 1945 PC 18 (Q), Lord Porter delivering the judgment of the Judicial Committee observed:
'No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.'
In the case of Ramprit Ahir v. Emperor, 26 Cri LJ 1608 : (AIR 1926 Pat 560) (R), Bucknill J. held:
'The detention or arrest of members of the public are not matters of caprice but are governed by and must be conducted upon certain rules and principles which the law clearly lays down. To arrest persons without any justification is one of the most serious encroachments upon the liberty of the subject which can well be contemplated.'
And consequently it was held, on the facts of that case, that the police had no justification for attempting to arrest the accused and that consequently in resisting the arrest the accused were not guilty of the offence of rioting. In the case of Vijoy Narain Singh v. King Emperor. 22 Pat LT 29 (S), where a constable directed the chowkidar to take the vendor, who was selling fish with defective weights and another person who had supported him, to the thana, and as they were being taken to the thana, the accused came up with other persons, who under his orders seized the chowkidars, who persisted that, the arrested men should be taken to the thana, and there was altercation, it was held:
'As the original arrest and the taking of themen to the thana were not justified because theoffence of the vendor was a non-cognizable one towhich the provisions of Section 54, Cr. P. C. did notapply, the accused did not exceed his legal rightsin insisting upon the relea.se of the arrested menand committed no offence.'
In the case of Hainan Singh v. Queen Empress. ILR 28 Cal 411 (T), where some persons were appointed special constables and a Police Inspector accompanied by some police went to their village and informed them that they had been so appointed, and requested them to accompany him to the police station, which they declined to do. whereupon the Inspector had one of them arrested, who shook himself free and afterwards himself with other persons abused and threatened the police and compelled them to withdraw from the village, it was held that the refusal of the persons to accompany the Inspector constituted no offence under Section 19 of the Police Act, as the order was intended not for any purpose of police duty, hut simply that they might obtain the authority of their appointment and the necessary arms and that the refusal to accompany the Inspector was not an offence, for which a man could be arrested, and, as the police When obstructed were not acting in lawful discharge of their duty, none of the persons concerned could be convicted of an offence under Section 353 of the Penal Code, In the case of Chander Prasad v. Emperor, AIR 1937 Pat 501 (U), it was held:
'The recording of reason before search is provided for both under the Criminal Procedure Code and under the Excise Act and is intended to protect the liberty of citizens and avoid useless and unjustified searches. If an officer before proceeding to search has to record his reason, he will have to apply his mind to the facts and the sufficiency of the information on the basis of which he wants to search.'
Where an Excise Sub-Inspector proceeded to search the house of the accused without recording reasons to do so as required by Section 74, Bihar and Orissa Excise Act and the accused assaulted him, It was held:
'The Sub-Inspector could not be said to be acting in the exercise of his powers and therefore the accused could not be convicted under Section 353, Penal Code.'
In the case of Jagarnath Mandhata v. Queen Empress, ILR 24 Cal 324 (V), where an Excise Sub-Inspector attempted to search a house for gurjatganja, a 'foreign excisable article' under the Excise Act and resistance was offered, it was held:
''''Gurjat-ganja being a 'foreign excisable article' under Section 4 of the Act as amended by Bengal Act IV cf 1881, the Excise Officer had no legal authority to enter and search the house under Section 40 of the Act; he had authority only to enter and search for any 'excisable article' as defined In Section 4 of the Act; and that no offence, either under Section 141 or Section 353 of the Penal Code, was committed.'
38. On the authority of the decisions quoted above with reference to unlawful arrest as well as with reference to unlawful search, the learned counsel for the appellants contends that as the entry both for the arrest and for the search is contrary to law and without jurisdiction, any resistance to these unlawful acts cannot be an offence and therefore there is no unlawful assembly and the appellants are not guilty of any offence under the first charge.
39. The learned Government Advocate very strenuously contended that under Section 99 of the Indian Penal Code the appellants are not entitled to obstruct as they have no right of private defence against a public servant. Section 99 is as follows:
'There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.'
The learned Government Advocate contends that the officers were acting in good faith by virtue of the report made by P. W. 4 and the search warrant issued by the Sub-Divisional Magistrate to effect the arrest and to execute the search warrant and consequently the appellants are not entitled to any right of private defence of either person or property. In the instant case, the entry into the Math, as already stated, for the two purposes was not authorised by law. The police party consequently were not acting in due discharge of their duties and under the process or law. The 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'. The question that there is no right of private defence under Section 99, I. P. C. does not arise as far as this aspect of the case is concerned.
40. Mr. Kanungo next contends that apart from the unlawful entry for arrest as well as the entry with an unlawful search warrant both without jurisdiction, the manner in which the police party entered the Math and attempted to arrest and seize the property was also unlawful, mala fide and contrary to law and therefore the appellants were entitled to a right of private defence. Some of the witnesses for the prosecution have stated that the ' eastern gate was the mala gate of the Math and that it always remained open. Though it is stated that one Sub-Inspector with some police constables went towards the eastern gate, the said Sub-Inspector was not examined in the case and it is admittedly the prosecution case that the entry of the police party was effected by breaking open the southern gate and subsequently also the western gate. Section 102 of the Criminal Procedure Code says:
'(1) Whenever any place liable to search or inspection under the Code is closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto and afford all reasonable facilities for a search therein. .
(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in manner provided by Section 48. X X X X'.
Section 48 provides:
'If ingress to such place cannot be obtained under Section 47 it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such a place and search therein and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person, to be arrested or of any other person, if after notification of his authority and purpose and demand of admittance duly made, he cannot otherwise obtain admittance.'
Section 47 is to the effect:
'If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or. is within, any place, any person residing in, or being in charge of, such place, shall on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein.'
By virtue of Sections 47, 48 and 102 of the Criminal Procedure Code, it was incumbent upon the police either for effecting the arrest of the four persons or for searching and seizling the arms under the search warrant, to have gone to the eastern gate which is the main gate of the Math and demanded Pagla Baba to allow them to enter the Math for the said purposes of arrest and search. The police party in this case broke open the southern gate for purposes of arresting and making search, did not take the two gentlemen witnesses whom they had taken with them or any other gentlemen witnesses when they made the entry through the southern gate and after entering they did not give any personal search of themselves.
Some of the prosecution witnesses stated that they gave calls at the southern gate addressing the Babajis who were found moving near about Bisam Kutir and that the names of the accused persons who were to be arrested were uttered, as also the purpose of the entry and that when there was no response the southern gate was broken open. Even assuming this version to be correct, it does not satisfy the requirements of the law. It was their duty, knowing as they do, that Pagla Baba was the head of the institution, to approach him through the eastern gate and demand entry for the purposes of arrest and search.
The evidence of the prosecution witnesses that they gave a call announcing the names of the accused and the purpose for which they came is simply, in 'my opinion, intended to show that the requirements of the law are satisfied. The entry first through the southern gate and afterwards of the other officers through the western gate, according to the prosecution evidence, itself, appears to be effected in order to cause a surprise to pagla Baba and is in the nature of an act in terrorism. Further the very plan which they arrived at as to the entry the previous evening on their own evidence leads one to think that everything was pre-arranged.
The learned Sessions Judge himself observedthat there was no direct evidence that the easterngate was closed and that the witnesses who remained at the western gate did not support theversion or P. Ws. 1 and 2 that constables fromother gates cried out that those gates were closed.P. W. 3 in his cross-examination stated: 'Therewas no voice within my knowledge there as towhether the other gates were closed or open'. Thetime at which the police party came is also significant. The injured police party were first examined at the hospital at 7-15 a.m. and taking intoconsideration the distance from Kaliaboda Mathto the hospital, they must have left theMath at about 6-15 a. m. They reachedKaliaboda according to the prosecutionevidence, at about 5-30 a. m.
The evidence of P. W. 1 as well as P. W. 11 in this case does not make out a consistent story. According to P. Ws. 1, 2, 11 and other witnesses it was P. W. 2 alone who gave the calls whereas P. W. 3 alone deposed that both P. Ws. L and 2 gave such calls. The Deputy Superintendent of Police .supports the version that there were calls at the southern (rate. The evidence that there were calls at the southern gate does not lead any further because according to law it is Pagla Baba who must be approached and demanded for an entry and this is not the cess for the prosecution.
Admittedly the search witnesses also were not taken when the party entered in the first instance. According to the learned Sessions Judge, it was an open fact that the police party did not offer anv personal search of themselves, though it is incumbent under the police manual. I am not convinced with the reasons given by the learned Sessions Judge to hold that these were not illegalities and breaking open the gates and the entrv of the police party inside were not attended with any illegality.
In my opinion, the entry under the circumstances even as stated by the prosecution witnesses, is illegal. I have already held that the entry for the search was not authorised and the search warrant was not a legal warrant and was in excess of jurisdiction. The learned Sessions Judge held that there was no right of private defence as the search warrant was partly legal and there was no illegality or irregularity committed while entering the Math after breaking open the gates. The learned Sessions Judge relied upon Section 99, I. P. C, and observed:
'Even if the police would have been doing those things only on the authority of the search warrant without their Independent right flowing from the investigation of the cognizable offences and even if the search warrant would have been wholly illegal, then even under Section 99, I. P. C. no right of private defence would have been available to the accused persons for so-called mischief and trespass under the illegal search warrant inasmuch as the search warrant had been issued by the Magistrate legally or illegally and the police were acting in good faith under the colour of their office.'
The learned counsel for the appellants contends that this finding of the learned Sessions Judge is incorrect and ought not to be accepted. He contends that under Section 99, I. P. C., it is obligatory that the public servant should be acting in good faith under the colour of his office though that act may not be strictly justifiable by law. Mr. Kanungo first submits that the action of the police cannot be said to have been taken in good faith on the evidence in the case and that their act is wholly without authority and without Jurisdiction and is not simply an act not strictly justifiable by law.
Apart from the evidence already referred to, the learned counsel also submits that the taking of the armed police into the Math is contrary to the provisions of the Police Manual and clearly demonstrates that the action of the police in marching to effect the arrest and the seizure is not done in good faith, but on the other hand is also mala fide.
Rule 621 regulates the rules for requisition for armed reserves and the disposition oJ force and how it should not. Under Rule 621 (a) every member of the armed reserves is supplied with twenty rounds of ball in pouches and also carries a reserve of ball ammunition at the minimum scale of 20 rounds per man. Clause (c) of Rule 621 provides (i) the party shall be halted in two ranks at least 100 yards, or other convenient distance from the scene of the disturbance or the place where the mob is collected and bayonets shall be fixed at once and (ii) every precaution should be taken to ensure that an armed force is not brought so close to a dangerous mob as to risk either its being rushed and overwhelmed or being forced to retire before achieving its objective or to inflict heavy casualties.
If the use of fire-arms is considered necessary, firing should be carried out from a distance sufficient to obviate the risk of being rushed and to enable strict fire control to be maintained, e.g., between 70 and 100 yards. Firing must on no account be deferred until the mob has approached within 70 yards, On the admitted evidence of the prosecution consisting of the responsible officers' of the police, these rules were violated in the present case. The armed police was brought in even before the necessity for the same commenced and was within a distance of about 30 feet from Pagla Baba's seat and even nearer than that from the armoury. According to Mr. Kanungo, Section 99, I. P. C. would have no application if the acting by the public servant is not in good faith and is wholly contrary to law.
There is a distinction between acting contrary to law and without jurisdiction and 'acting in a way not strictly justifiable by law'. 'Good faith' in criminal law is different from 'good faith' as understood in Civil Law. If an act is not done with due care and attention, it cannot be said to be done in good faith as far as criminal law is concerned. In the case of Sukar Sao v. Emperor, AIR 1941 Pat 560 (W), Justice Shearer held:
'The words 'not strictly Justified by law' in Section 99 apply to cases in which there is an excess of jurisdiction as distinct from a complete absence of jurisdiction.'
In that case, according to the prosecution, the accused was about to close a drain through which he was in the habit of discharging the rainwater from his house. The Magistrate made an order that 'Local Police to see that the status quo is maintained'. Thereupon a police officer went to the accused's house and found that the drain had been closed and a wall constructed over it and that water had accumulated in the gola of the complainant. He therefore proceeded to have the wall demolished and the drain reopened. Accused and a considerable body of persons who had collected there protested against action of police officer and manifested an intention of stopping him if necessary by force, whereupon the police officer desisted, took the accused to the police station and recorded a first information report. The accused was convicted under Sections 147 and 353, I. P. C.
It was held that the Magistrate had not authorised the police officer to do what he did and the accused were clearly entitled to resist the attempt made by the police officer and the men, who were with him. to demolish the wall and reopen the drain in their premises and therefore did not commit the offence of which they were convicted; and that the police officer could not be said to have acted in good faith inasmuch as he did not understand the meaning of the expression 'status quo' in the Magistrate's order and did not take proper steps to ascertain what the Magistrate intended him to do. In the case of Gaman v. Emperor, AIR 1930 Lah 348 (X), it was held:
'If without any emergency for arrest contemplated by Section 151, a police officer arrests or attempts to arrest a person, the arrest or the attempt to arrest is not only, not strictly justifiable by law but is illegal and the person who is arrested or attempted to be arrested is entitled to offer resistance. If. further, such person apprehends hurt at the hands of armed constables sent for the arrest, and such constables use criminal force towards such person, who retaliates it causing them simple injury it cannot be said that he has exceeded his right of private defence.'
It was held:
'Section 99 was inapplicable where the action of the Sub-Inspector of Police was wholly without, jurisdiction.'
In the case of Bisu Haldar v. Emperor, 11 Cal WN 836 (Y), where on the complaint of one G that his wife was wrongfully confined by his father-in-law, a warrant was issued under Section 96, Cr. P. C. and the police attempting to execute this warrant at the house of the father-in-law, was obstructed by him and seven others who also used criminal force, it was held that the accused were justified in doing what they did in the exercise of the right of private defence and that as the warrant issued was wholly illegal and must be treated as a nullity, the accused were not deprived of the right of private defence under Section 99, I. P. C.
The learned Judges construed the expression 'not strictly justifiable by law'. They quoted from Mayne's Commentary on Criminal Law that
'the words 'not strictly justifiable by law* seem to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction, to cases where the official has done wrongly what he might have done rightly not to cases where the act could not possibly have been done rightly,'
and approved of the same as a sound, exposition of the law and that Section 99 did not apply in cases where there is complete absence of jurisdiction and the act could not possibly have been done rightly. In the case of Emperor v. Param Sukh. AIR 1926 All 147 (Z), the facts were that in the course of lawful search by a Police Inspector he illegally laid hands on a woman.
The accused, a near relation of hers, having come to her assistance, an altercation ensued, in the course of which he was struck with a stick, he then snatched it and struck the Police Inspector two blows on the head. The Police Inspector died as a result of the injury. It was held:
'There was no voluntary causing of death and the accused was protected by the right of private defence.'
In the course of the Judgment, it was observed:
'There can be no doubt that he was acting in excess of his powers in that he was making this search without having recorded any order in writing and giving his reason therefor under Section 165, ..... .The next thing wo find is that he took with.him no witnesses to the search..... .The last andmost important and material point is that clearly he had no right whatever of any sort or description to interfere with the woman.'
In the case of Moinudclin v. Emperor 2 Pat LT 455: (AIR 1921 Pat 415) (Z1), it was held:
'A Magistrate has no jurisdiction to issue an order under Section 144 in favour of any person and ask the police to allow him to cut the crops, without making any inquiry as to who was in possession of the lands, and the third party, whose possession is found, had a right of private defence of property under Section 99, I. P. C. and the accused were not deprived of that right simply because the police were there armed with an illegal and unjustifiable order of the Magistrate. The words 'not strictly justifiahie by law' seem to point out to cases where there is an excess of jurisdiction, as distinet from a complete absence of jurisdiction.''
In the case of Jograj Mahto v. Emperor, AIR 1940 Pat 696 (Z2), it was held:
'The word 'strictly' has been deliberately inserted by the legislature to show that Section 99 Was not intended to apply to cases where the act was wholly unjustified, it does not extend to cases where there is a complete want of jurisdiction.'
In the case of Anand Ballabh v. State of Bihar, AIR 1953 Pat 313 (23). it was held:
'The words 'srictly-justifiable by law' in Section 89 show that the section does not contemplate a case of initial want of jurisdiction. If there was no jurisdiction to issue the warrant of arrest or to make arrest, Section 99 cannot be of any help to the public servant.'
41. The learned Government Advocate in reply contends that the appellants were armed with a search warrant issued by a Magistrate and were acting within their powers under Section 54 of the Criminal P. C. and the sections relating to investigation or a cognizable offence and therefore as there was an order of a competent Magistrate and the authority of law even if the search warrant was irregular and defective and the anticipated arrest was sought to be done by irregular means, the action of the police may be a case of exceeding jurisdiction and does not amount to acting absolutely without jurisdiction. In support of his contention, he relied upon a decision in the case of Khuda Bux v. State, AIR 1951 All 637 (Z4), In that case it was held:
'Where there is an order of a competent Magistrate to arrest a person, a police officer cannot be said to have acted without jurisdiction in arresting that person. Assuming that the warrant of arrest was defective or irregular then at the most it would be a case of his exceeding the jurisdiction and not of acting absolutely without jurisdiction. Hence in executing such a warrant of arrest if the police officer acts in good faith colore offici, there is no right of private defence against his act. The only effect of the illegality of the warrant would be that the police officer cannot be said to have been acting in the discharge of his duty within the meaning of Section 332, Penal Code, and consequently if the person to be arrested resists it or being arrested escapes from custody, he and others, who help him commit no offence. But if in addition they do other acts which are criminal, they arc certainly responsible for them.'
In another decision cited by him in the case of Government of Bengal v. Alimandi, AIR 1933 Cal 469 (25), where a nazir who was ordered to give possession of land to decree-holder asked the judgment-debtor to remove the hut standing on the land and on his refusing and insisting that if they were to be removed they should be removed by the nadir's men, the nazir's men began to. remove the hut by cutting down posts instead of digging and taking them out when the accused obstructed the nazir and his men and in so doing, threatened and chased them, it was held that the nazir and his party acted in good faith; that the accused had no .right of private defence and that the accused were guilty under Section 186, Indian Penal Code.
In the case of Ramjit v. Emperor. AIR 1938 All 120 (26), the facts were, on the police coming to arrest a woman, she and her companions offered resistance and created such disturbance that communication of the substance of the warrant was not possible. The police overcame the resistance and then showed the warrant and communicated its substance and then effected the arrest. It was held:
'There was nothing irregular in the procedure followed in effecting the arrest. The so-called irregularities, if any, were not such as to bring the case outside Section 99, Penal Code, and give the accused a right of private defence''.
On the strength of this case, the learned Government Advocate also contended that even if it is held that the cry of the police from outside the southern gate was not audible to Pagla Baba, yet after the entire police party entered the Math through the southern and western gates and after the parley of the Sub-Divisional Magistrate with Pagla Baba there were cries of 'Husiar' and 'Sabadhan' and certain words referred to in the course of this judgment when the police were obliged to overcome that resistance and then march to effect the arrest and seizure, the police party were acting in discharge of their duties and consequently Section 99, I. P. C. would apply. In the case of Kalian Beg v. Emperor, AIR 1936 All 306 (Z7). it was held that:
'The Section (section 100 of the Criminal Procedure Code) is not happily worded and lays down that it is for the Magistrate to find whether there are reasons for believing that any person is in wrongful confinement, and if he is so satisfied and issues a search warrant the police officer to whom the warrant is addressed, has merely to execute it according to its tenor. He must search for the person believed by the Magistrate to be unlawfully detained. The officer charged with the execution of the warrant is not expected to disregard the finding of the Magistrate, and all that he is to do is to search for the person in question and to take him to the Magistrate.
Where constables are acting under colour of their office in executing a search warrant in a village even if their act is not strictly justifiable by law, the villagers have no right of private defence since the constables were acting in good faith. Any technical flaw in the warrant is immaterial in considering the question whether the villagers have a right of private defence.'
In the case of Puna Mahton v. Emperor AIR 1932 Pat 315 (Z8), it was held that:
'Section 99 protects the public servant against the right of private defence even if the authority be defective in minor particulars or even if the officer exceeds his duty in a minor particular. It merely leaves the right of private defence open when the alleged authority is no authority at all & is wholly defective in form or the officer goes clearly and widely outside the duties imposed on him. If the authority has no defect the section has no operation.'
The above decisions relied upon by the learned Government Advocate show that in those cases the acts of the public servants concerned were not acts wholly without jurisdiction hut were only acts not strictly justifiable by law and the actions of the public servants concerned were held to be done in good faith. I have already held that in this particular case the authority is without jurisdiction and that the officers did not act in good faith. They tried to enter the Math through the backdoor. They did not wire to contact the head of the institution Pagla Baba either to demand the persons who were to be arrested or to inform him that they were armed with a search warrant to seize the weapons in the Math, before they actually entered the Math. They effected the entry by breaking open the sourthen and western gates. They did not immediately, after the entry, try to ex-ecutc the purposes for which they entered, saying that the situation was- threatening when there were only 9 Babajis in the Math according to the prosecution case. They took into the Math the armed police also very near contrary to rules and carrying all these forces before Pagla Baba, they informed him the purpose of their entry and on his refusal or inability to surrender the persons, the police instead of directly arresting the persons Who were before their very eyes and seizing the arms which were before them, made a show of military array, got the armed police load their rifles in the presence of the Babajis and then marched and on the evidence of the prosecution itself it is after marching three steps that the melee began.
On these facts, I am clearly of opinion that not only the police were not with legal authority either to arrest 'or to effect a search but also did not act in good faith as is required by law and their action is wholly without jurisdiction. Therefore, in my opinion the decisions relied upon by the learned Government Advocate do not apply to the facts of this case and I cannot accept the contention on behalf of the Slate that the action of the Police was such that it could not give rise to a right of private defence on the part of the appellants under Section 99 of the Indian Penal Code.
42. Mr. Kanungo finally contends that even on the assumption that the police were armed with a requisite authority to search and to effect the arrest and even on the assumption that the entry into the Math was legal, yet the Way in which the police acted after the parley with Pagla Baba does give rise to a right of private defence of person and property. After the Sub-Divisional Magistrate failed to pursuade Pagla Baba to surrender the four persons named and the arms, he wrote out an order (Ext. 51) after which the aimed police loaded their rifles, the lathi party held their lathis in horizontal way, and the entire armed police and lathi police were ordered to march.
It is admitted in the prosecution case that after the advance was made three steps by this lathi party consisting of 35 persons and the armed police consisting of 9 persons that the first assault on the police party began. The appellants contended that there was assault also in the first instance from the police party in that revolver shots were fired against Anam and Bhabagrahi when Bairagi and other began to attack Guljar. Even if this contention of the appellants is not accepted, there is no room for doubt that the assault on the police party began after the advance of the lathi party backed up by the armed police with loaded rifles.
In that situation the appellants apprehended that if they did not move, death or grievous hurt would be the result and consequently all the injuries Caused by them on the several police officers proved in this case not only by the evidence of the police constables but also by the medical certificates issued by the medical officers including the death of Purna Chandra were all committed in the course of right of private defence of person and property, as contemplated under Section 97 of the I. P. C, and that under Section 100 I. P. C. this right of private defence of the body extends to the causing of death or of any other harm to the assailant, as the assault in this case reasonably caused the apprehension that death or grievous hurt will otherwise be the consequence of the advance by the police party, and as also under Section 103 I. P. C. the march by the police consisting of the lathi party and the armed party was, under the circumstances present in this case, an attempt to commit robbery, inasmuch as the attempt to seize the arms by advance with lathis and loaded rifles amounts to an attempt to commit robbery. As such the action of the appellants, according to Mr. Kanungo, does not come under Section 99 I. P. C. as there is an apprehension of death or grievous hurt but is covered by Ss., 100 and 103 I. P. C.
43. With regard to this general right of private defence contended for by the learned counsel for the appellants, the learned Government Advocate contends that under Section 97 I. P. C. there can be no right of private defence of person unless there is an offence by the person against whom the right is exercised, and the right of private defence of property also arises against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, etc.
According to his contention there must first be an offence either against the human body or against property before the right of private defence can be exercised. He submits that the police party was advancing for the lawful purpose of effecting the arrest of the four persons and for seizing the arms both of which do not amount to an offence against the person or property. He relies upon the very wording of Section 97 I. P. C. in both the first and second clauses as also on the following decisions. In the case of Sawal Seth v. Emperor AIR. 1933 Pat 144 (Z9) it was held that,
''The right of private defence only exists against acts amounting to an offence against person orproperty and within the limits of Section 97 and thefollowing sections of the Penal Code. That the Municipality has no right to collect toll is no justification for beating the peon who comes to demand it.'
In the case of Chandra Bhan v. State AIR 1954 All 39 (Z10), a Division Bench of the Allahabad High Court held,
'The right of private defence only arises against acts which constitute an offence except in certain specified circumstances, The right of private defence of person extends to acts which amount to an offence affecting the body of the person exercising the right, or the body of any other person. The right of private defence of property covers cases of acts which are offences falling under the definition of 'theft' 'robbery' 'Mischief, or 'Criminal trespass' or an attempt to commit any of these.'
In the case of Nga Nan Da v. Emperor 54 Ind Cas 577: (AIR 1920 UB 35) (Z11), the accused, who was in illegal possession of opium, was ordered by an Excise Inspector to stop, & the latter fired two shots to frighten him. The accused thereupon turned round and wounded the Excise Inspector With his sword He was then caught and while a peon was proceeding to disarm him, the accused wounded the peon also with his sword. It was held that
'The Excise Inspector was entitled to arrest the accused and for that purpose to use all necessary means;
He was not, however, justified in causing death in effecting the arrest under Section 46 (3) of the Criminal Procedure Code;
Inasmuch as apprehension of death had been caused to the accused, he had a right of private defence against the Inspector which had not been exceeded.'
In the case of Queen Empress v. Subba Naik ILR 21 Mad 249 CZ 12), the facts are as follows:
A caused crops to be sown on land, as to the enjoyment of which there was a dispute between her and B. Persons having proceeded to reap the crops on behalf of B, the servants of A went to the place with the station-house officer and some constables who were armed, The station-house officer ordered the reapers to leave off reaping and to disperse, but they did not do so; he then told one of the constables to fire, and he fired into the air. Some of the reapers remained and assumed a defiant attitude.
The Station-house officer, without attempting to make any arrests and without warning the reapers that, if they did not desist from reaping, they would be fired at, gave orders to shoot, and one of the constables fired and mortally wounded one of the reapers. It was found that neither the station house officer nor the last mentioned constable believed that it was necessary for the public security to disperse the reapers by firing on them. It was held by the Division Bench:
'The station-houge officer and the constable were not acting in good faith and that the order to shoot was illegal and did not justify the constable and that both he and the station-house officer were guilty of murder'.
No doubt these decisions hold that the right of private defence is available only if an offence against the body or property is committed. But the Penal Code itself contemplates certain cases where in order to exercise the right, there need not be an offence under the Penal Code. Section 98 I. P. C. says that,
'Where an act. which would otherwise be a certain offence, is not that offence, by reason ofthe youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.'
Again the right of private defence becomes nugatory if it is to be exercised after the offence is committed. In the course of the judgment in the case of Ram Saiya v. Emperor AIR 1948 All 205 (213) the learned Judges observed,
'The use of the words 'Offences affecting the human body both in Section 97, which gives the right of private defence, and in the beginning of Chapter XVI makes it clear that the right of private defence- of person arises in favour of a person in cases when any of the offences mentioned in Sections 209 to 377 is contemplated to be committed against the person who seeks to exercise that right. The right of private defence of person arises against the commission of an offence and not against any mere physical act which may not be to one's liking, but is not punishable under the provision of the Penal Code'.
So. in my opinion, it is not necessary, as contended for by the learned Government Advocate that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehends that such an offence is contemplated and that it is likely to be committed if the right of private defence is not exercised. In this case, the march of the police party with lathis in horizontal position and armed with rifles and revolvers is enough to give rise to the right of private defence.
That march under the circumstances stated above may also amount to an assault as may reasonably cause the apprehension that death or grievous hurt would otherwise be the consequences of such assault and the case is then directly covered by Clauses (1) and (2) of Section 100 of the Indian Peral Code and is taken out of Section 99 of the Indian Penal Code.
44. Mr. Kanungo also contends that even assuming that the march by the police party was a lawful one and that the police party never intended to cause grievous hurt or death, but only wanted to effect the arrest and to seize the property yet as the appellants were, in good faith, under the impression that the march was an assault to cause grievous hurt or death or to cause robbery, it may be under A mistake of fact thinking that it was a march as thought of by them, they were exempt from any liability under Section 79 of the Indian Penal Code which says, that nothing is an offence which is done by any person who is Justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.
According to the learned counsel's contention, the appellants are Justified by law to exercise the right of private defence if they were under a bona fide impression, though mistaken, that the march amounted to an assault causing an apprehension that otherwise death or grievous hurt would be the result. If the assault is not for that purpose, they were, by reason of a mistake of fact, under the impression that it was such an assault. In the case of Kanai Lal Gowala v. Queen Empress ILK 24 Cat 885 (Z14), where certain, persons went to execute a warrant of arrest against their judgment-debtor, and a palanquin with closed doors was noticed to be coming out of the male apartments of the house, and they believing that the Judgment-debtor was effecting his escape in it, stopped it and examined it, although the person accompanying it protested and said .there was a lady in it and there turned out to be in it a pardanashin lady of rank, it was held that the accused were protected by Section 79 the Indian Penal Code.
45. In the case of Queen v. Tolson (Crown Case Reserved) (1889) 23 QBD 168 (Z15) the prisoner was convicted under 24 & 25. Vict. C. 100, Section 57 of bigamy having gone through the ceremony of marriage within seven years after she had been deserted by her husband. The jury found that at the time of the second marriage she, in good faith and on reasonable grounds, believed her husband to be dead. It was held by Lord Coleridge, C. J. Hawkins, Stephen, Cave, Day, A. L. Smith, Wills Grantham and Cnariess JJ. (Denman, Field and Manisty JJ. and Pollock and Huddleston, BB. dissenting) that a bona fide belief on reasonable grounds in the death of the husband at the time of the second marriage afforded a good defence to the indictment and that the conviction was Wrong. Stephen J. observed,
'It may be laid down as a general rule that an alleged offender is deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence.'
In the case of Reg V. Rose (1884) 15 Cox CC 540 (Z16) the facts were -- Under circumstances which might have induced to believe that a man was cutting the throat of his wife, their son shot and killed his father. It was held by Lopes J. that,
'If the accused had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was excusable'.
On the facts of the instant case and for the reasons given, I am of opinion that the appellants in this case acted in good faith honestly believing that the march by the police party with loaded rifles, loaded revolvers in hand and lathis in horizontal position, would cause either death or grievous hurt and under that apprehension acted in self-defence. In my opinion, therefore, this contention raised by the learned counsel for the appellants is a correct one.
46. For the reasons stated above, my conclusions on the various points raised in this case are as follows:
1. That the evidence of the prosecution witnesses cannot be disbelieved on the ground that they are all, except the formal witnesses, members of a police party;
2. That the police party did not act at the instance of Sikharpur people and Shri Biren Mitra. maliciously in order to trouble Pagla Baba and the inmates of the Math under the guise of the search warrant and the arrest;
3. That the trial is not vitiated on account of the defective charges framed and defective examination under Section 342 Cr. P. C. as the appellants were in no way prejudiced;
4. That the police officer of Mangalabag P. S. got a case registered of a cognizable offence on the report of P. W. 4 without any good faith;
5. That there was no reasonable suspicion of a cognizable offence having been committed by the four persons as per the report of P. W. 4;
6. That the Sub Divisional Magistrate did not record his reasons and that the search warrant in this case was not lawful and was in excess of jurisdiction :
7. That the entry of the police officers for these two purposes was an illegal entry and did not comply with the provisions of the Criminal Procedure Code;
8. That after their entry, there was a melee in which one person of the police party died and the others were injured by the Babajis;
9. That the action of the Police in trying to effect the arrest and seizure of arms by ordering the march of the police party was not done in good faith;
10. That they were, in so acting, not acting in due discharge of their duties;
11. That the appellants had the right of private defence of property and person in injuring the member of the police party;
12. That the appellants are not deprived of the right of private defence under Section 99 I, P. C.;
13. That, that right of private defence extended on the evidence in this case even to the causing of death or grievous hurt; and
14. That Pagla Baba did not commit the offence of abetment of rioting or of causing hurt to public servant in discharge of his duty.
47. In my opinion, therefore, the convictions and sentences passed upon all the appellants in both the appeals are not sustainable and are set aside. The appellants are entitled to be acquitted and I direct that the appellant in Cr. Appeal 97 of 55 be set at liberty forthwith and the bail bond of the appellant Pagla Baba in Criminal Appeal No. 85 be cancelled. All the seized weapons shall be returned to Pagla Baba.
48. I agree.