Richardson and Imam, JJ.
1. This Rule was issued on the District Magistrate of Muzaffarpur to show cause why the convictions of the petitioners Bissar Misser and Moti Misser, under Sections 332 and 353 of the Penal Code, respectively, should not be set aside in view of the decision of the Court in the case of Bajrangi Gope v. Emperor (3) and why the sentence passed on the petitioner, Rameswar Misser, under Section 342 of the Penal Code, should not be revised.
2. The facts found are thus stated in the judgment of the learned Sessions Judge on appeal:
A Sub-Inspector of Police, who is the complainant in the case, went with Bisseswar Marwari to search the house of a servant of his, one Sirjawan Misser, whom he had charged with criminal breach of trust in respect of a sum of Rs. 340. The object of the search was to discover the money and a bag in which it was contained. A house was pointed out to the Sub-Inspector by Bisseswar as that of Sirjawan. The Sub-Inspector called two residents of the village, and one resident of a neighbouring one who were close at hand, to attend as search witnesses and proceeded to search the house. One Santok Misser, who has also been convicted in this case, went before the search into the house and removed the females. When one room had been searched, and a search of a second had begun, the three appellants came into the house and told the Sub-Inspector to get out or they would assault him. Bissar Misser was carrying a sickle. Words were exchanged and a scuffle followed in the course of which Bissar cut the Sub-Inspector on the hand with his sickle. Moti Misser knocked him down and Rameswar Misser and the other three accused administered a beating to Bisseswar.
3. The only additional facts which need be stated are that Sirjawan had been arrested before the search took place, that the house searched belonged to him and his brothers, the petitioners Bissar and Moti Misser, and that Bisseswar was shut into a room prior to his being assaulted. As to the convictions under Sections 332 and 353 and the case of Bajrangi Gope v. Emperor (1910) I.L.R. 38 Calc. 304 there appears to be some misunderstanding as to what was actually decided in that case. No doubt some of the observations of the learned Judges, before whom the case came, suggest that they were at the time disposed to take the view that Section 94 of the Code (upon which the power to search conferred by section. 165 in some degree depends) 'does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person.' But in the first place that wide proposition is not supported by the case to which reference was made: Ishwar Chandra Ghoshal v. Emperor (1908) 12 C.W.N. 1016. In that case the facts were peculiar. An accused person who was actually on his trial for offences under Sections 171 and 193 of the Penal Code was called upon to produce a document: the document was not produced and because it was not produced the prosecution failed. The accused was then prosecuted and convicted under Section 175 of the Penal Code for disobedience of the order to produce the incriminating document. All that was held was that Section 94 of the Criminal Procedure Code did not apply to the case of an accused person on his trial--the last three words are not without importance--so as to render him liable to punishment under Section 175 of the Penal Code for such disobedience. That is a very different thing from saying that the person or house of the accused could not have been searched for the document either before or during the trial. In the second place the learned Judges guarded themselves from expressing a final opinion on the subject in its broader aspect. What they said was that in the case before them it was 'sufficient to hold that Section 165 did not authorise a search for stolen property in the house of the absconding offender' and that, remarkable as it might appear, there was no other section which would cover such a search. Now the scope of the decision was thus expressly narrowed, and, as it seems to us, the words which it was intended to emphasize were the words 'stolen property' and not the words which follow 'in the house of the absconding offender'. The particular objection to the search which the learned Judges had in their minds was not that the search was made in the house of an accused person but that the search was made for stolen property generally, whereas under Section 165 a search might only be made for a particular document or thing. That this is the true meaning of the language employed appears to be clear from what is said just before that Section 165 'does not authorize a general search for stolen property', and also from the way in which the case is referred to in the subsequent case of Prankhang v. King-Emperor (1912) 16 C.W.N. 1078 decided by the same learned Judges. The learned Judges say there that the opinion had apparently been entertained that the ruling in Bajrangi Gopi v. Emperor (1910) I.L.R. 38 Calc. 304 'if it intended to lay down that a police officer is not empowered to search an accused's house for stolen property relevant to the case, is not a correct statement of the law,' and they dispose of that opinion as follows: 'We desire again to point out that the law does not empower a police officer to search an accused's house for anything' but the specific article which has been or can be made the subject of summons or warrant to produce. A general search for stolen property is not authorised, and the law cannot be got over by using such an expression as 'stolen property relevant to the case.' Such expressions are vague and misleading and the terms of the law are extremely specific.' This passage is meaningless unless there is some right to search the house of an accused person. Some right of this kind is implicitly, if not explicitly, recognized.
4. Considered in their true light, the three recent cases to which we have averted lend no real colour to the contention that the powers conferred by Sections 94 and 165 of the Criminal Procedure Code do not expend to accused persons. The contention, moreover, is plainly opposed to the ruling of this Court in the earlier case of Mahomed Jackariah & Co. v. Ahmed Mahomed (1887) I.L.R. 15 Calc. 109 which was not brought to the notice of the Court in Bajrangi Gope v. Emperor (1910) I.L.R. 38 Calc. 304. The law was fully considered in that case in the separate judgments delivered by Norris and Ghose JJ. Referring to Section 94 of the Code of 1882; which differs in no material respect from the same section of the present Code, Norris J. remarked (p. 122), that the words of section 'are of the widest possible character'. Ghose J. dealt historically and exhaustively with the whole question and his conclusion is thus expressed (pages 140 and 141): 'It will be observed that the Law, so far as the immediate subject before us is concerned, is practically the same as it was in 1872; and there can, I think, be no doubt that the Legislature intended, as I have already observed, that an accused person might be compelled to produce evidence against himself; and reading the above Sections (i.e., Sections 94-99) with Schedule V, Form No. VIII of the Criminal Procedure Code, the only safeguards, as far as I can see, which the Legislature provides are, first, that the document called for, or in regard to which a search warrant is issued, must be distinctly specified; secondly, that the documents are necessary for the purpose of the inquiry; and thirdly, while granting a search warrant, the Magistrate must exercise his judicial discretion, and that he should not make such an order unless the materials before him justify him in so doing.' No doubt Ghose J. referred to proceedings in the Legislative Council, in accordance with a practice which has since been authoritatively declared to be inadmissible, but the reasoning derives little additional force from what was said in Council. The conclusion really rests upon the wide words of the Code itself.
5. The safeguard which, as it appears to us, was insisted on in Bajrangi Gope v. Emperor (1910) I.L.R. 38 Calc. 304 and Prankhang v. King-Emperor (1912) 16 C.W.N. 1078 was the first of the safeguards mentioned by Ghose J.
6. When a burglary or dacoity is committed, information is usually laid at the thana and a list of the articles stolen is supplied or taken down in writing. The Police then make an investigation in the course of which the houses of suspected, absconding or arrested offenders are, or may be, searched for the specific articles comprised in the list. So far as we are aware since Mahomed Jackariah & Co. v. Ahmed Mahomed (1887) I.L.R. 15 Calc. 109 was decided, up till now, the legality of searches made in such circumstances has never been seriously disputed in this or any other province. The question, so far as it depends upon the terms of Section 94, does appear to have been raised by counsel (Mr. Manomohan Ghose) in Nizam of Hyderabad v. Jacob (1891) I.L.R. 19 Calc. 52 but without much insistence. The argument was noticed by Beverley J. and was summarily dealt with by Ameer All J., who described the proposition 'that the Magistrate had absolutely no power to call either upon the accused or upon his bailee for the production of any thing connected with the offence as a somewhat startling proposition', and went on to point out, in language similar to that of Norris J., 'that the words of Section 94 are very large.'
7. In the present case, as we have said, Sirjawan was arrested before his house was searched and we may add that from the cases cited by Norris J. (I.L.R. 15 Calc. at pages 126 et seq.) it would appear that the right to search the person and premises of an accused person who has been lawfully arrested, is recognised in England, and that the search may be not only for specified articles but generally for incriminating evidence. In India the power to search an arrested person is provided for by Section 51 of the Code, and Section 528 implies a right on the part of police officers to seize property 'alleged or suspected to have been stolen or found under circumstances which create suspicion of the commission of any offence.' That section, does not confer a right to enter the premises of an arrested person or any premises. A right of entry or of search must be looked for elsewhere. In the view which we take of the meaning of Sections 94 and 165, it is unnecessary for the purposes of the present case to pursue the enquiry further.
8. In our opinion, the search of Sirjawan's house is covered by the provisions of Section 165. We also agree with the Sessions Judge that, in the circumstances, the sentences passed on the petitioners are not too severe. The Rule must accordingly be discharged and the petitioners must serve out their sentences.