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Kajaji Ramji Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1966CriLJ331
AppellantKajaji Ramji
RespondentThe State of Gujarat
Excerpt:
.....permission for admitting a previous statement in evidence. vides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person the police-officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel found upon him. 53. the officer or other person making any arrest under this code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or office before which or whom the..........undersub-section46, 51 and 53 of the cr. p.c. they read as follows:46. (1) in making an arrest the police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.2. if such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.3. nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.51. whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which pro. vides for the taking of bail but.....
Judgment:

V.B. Raju, J.

1. The appellant was convicted under Section 19(e) and (f) of the Indian Arms Act, and this conviction is challenged in appeal. The prosecution case was that on 2-8-1982, on suspicion the police searched certain persons in the compound of the Courts of the City Magistrates, Ahmedabad, and the appellant was found in possession of five live cartridges on his person. A Panchnama was made, In appeal, it is contended that one of the Panchas does not support the prosecution and according to him nothing was found from the appellant. It is contended that the evidence of the second Panch that five live cartridges were found from the appellant is hearsay evidence because the second Panch has deposed that the police told him that five cartridges were found from the appellant. The panchnama was read over to this witness Navinchandra and he admitted having signed it and that the contents are correct. But he added that he stated that the cartridges were found from the appellant as he was there and the police told that the cartridges were found. It is, therefore, contended that the evidence of both the panchas does not support the prosecution. The prosecution case is proved by the evidence of P. S, I., Motising and the Police Head Constable Dilawarsing. According to the learned Government Pleader, the evidence of the Panch also supports the prosecution case because he admits that he signed the panchnama and that the contents of the panchnama, which was read over to him, are correct.

2. There is no provision in law for reading over the contents of a document when the con-tents of the document are not a matter in issue, and it is not necessary to prove the contents of the document as such. The examination of a witness consists of putting questions to him and taking out answers from him. But in some cases when a signature has got to be proved, the signature can be shown to the witness and he can be asked whether that signature is his, because that is a case in which the signature has got to be proved. But in the case of a Panchnama, the contents of the Panchnama are not required to be proved as such, and therefore the contents of a Panchnama cannot be read over to the witness. By reading over the contents of a Panchnama to a witness and making him answer that the contents are correct, the contents of the Panchdama are being proved as substantive evidence. The contents of a Panchnama are not required to be proved and they should not be proved. The panchnama in such a case is a statement made by the Panchas in the course of the police investigation of a cognisable offence about which the police have reasonable suspicion. Such a panchnama should not, therefore, be signed by the panchas and should not be admitted in evidence, unless the other requirements of Section 182, Cr. P.C. are satisfied that is, unless the Court gives special permission for admitting a previous statement in evidence. A panchnama is, in fact, a note made by the panchas of what they had seen or what they had heard, and they can themselves refresh their memory under Section 159 of the Evidence Act by themselves reading the document. In order to refresh their memory, they themselves should read a document and the document should not be read over to them, because there is no such provision in Section 159 of the Evidence Act. The answers elicited from such witnesses are therefore contrary to the provisions of the Evidence Act and must be ignored.

3. The result is that the prosecution case is not supported by either of the Panchas. But this is not a case in which Panchas are necessary. Sections 102 and 103 of the Criminal P. C, refer to the search of a place, and Sub-Section(3) of Section 102, Cr. P.C. provides as follows:

Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made such person may be searched. If such person is a woman, the directions of Section 52 shall be observed.

In these circumstances, a person may also be searched. This is not a case in which a place has been searched and the provisions of Section 103, Cr. P.C. would not apply, and it is not obligatory to keep Panchas.

4. The learned Government Pleader contends that such a search is justified underSub-section46, 51 and 53 of the Cr. P.C. They read as follows:

46. (1) In making an arrest the police-officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action.

2. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest.

3. Nothing in this Section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life.

51. Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which pro. vides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person the police-officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel found upon him.

53. The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or office before which or whom the officer or person making the arrest is required by this Code to produce the person arrested.

5. In this case, it is not the case of the prosecution that the person was arrested before he was searched. P, Section 1 Motisinh has deposed that he was informed by P.C. Jagatsinh that one Sendhaji and his men were in the Court compound with arms and cartridges and that he therefore went to the Court compound, surrounded the parties and searched all the persons. Nothing was found from three persons. From the appellant five live cartridges were found. The contention of the learned Government Pleader is that as the Police surrounded the parties, the parties had been arrested. This contention cannot be accepted. Merely surrounding a person does not amount to his arrest. In fact, the report made by the police to the Magistrate shows that the appellant was arrested at 1-30 P. M., on 3-8-62 while the search was made at 12-15 noon that date. Section 123 of the Bombay Police Act reads as follows:

Whoever not being a member of the armed forces of the Union and acting as such or a Police Officer goes armed with any sword, spear, bludgeon, gun. ox other offensive weapon or with any explosive or corrosive substance in any street or public place unless so authorised by lawful authority, shall be liable to be disarmed by any police officer, and the weapon or substance so seized shall be forfeited to the State Government, unless redeemed within two months by payment of such fine not exceeding five hundred rupees as the Commissioner or the District Magistrate in area under their respective charges imposes.

This Section applies to a person armed with any offensive weapon or with any explosive or corrosive substance in any street or public place and therefore would apply to the case of the appellant, who was carrying live cartridges. Disarming the appellant of the live cartridges in his possession would, therefore, be justified under Section 123 of the Bombay Police Act.

6. The fact that the appellant was found with five live cartridges is proved by the evidence of P. Section I. Mortising and Police Constable Jagatsinh. The appellant was asked during his statement regarding the evidence of these two witnesses, but he stated that he had nothing to say about their evidence. There is therefore no reason to disbelieve the evidence of these two witnesses.

7. The conviction of the appellant is therefore confirmed. The sentence of seven months' R. I. and a fine of Bs. 200 in default of R. I. for one month is also confirmed, as there is no reason to interfere with the sentence, when a person is found in a Court compound armed with live cartridges. The appeal is therefore dismissed.


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