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Paresh Chandra Sen Gupta Vs. Jogendra Nath Roy Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1927Cal93,97Ind.Cas.955
AppellantParesh Chandra Sen Gupta
RespondentJogendra Nath Roy Chowdhury and anr.
Cases Referred and Emperor v. Brihhbhan Singh
Excerpt:
- .....of having committed the theft, the house of the plaintiff was searched in order to discover the stolen property. nothing was found. as the result of this the plaintiff has brought this case against these two persons claiming bs. 400 as damages made up as follows : rs. 100 as damages for the articles lost and damage done to his articles during the search and rs. 300 apparently on account of mental and bodily pain that he had suffered on account of the illegal search and loss of reputation. his case would seem to be that defendant no. 2 maliciously and without any reason or cause instigated defendant no. 1 to search his house and that defendant no. 1 illegally searched his house.2. the trial court found that the search made by defendant no. 1 was not illegal. he, however, found that.....
Judgment:

Cuming, J.

1. The facts of the case out of which this appeal has arisen are as follows : The present appellant before us-who was Defendant No. 1 in the trial Court was a Sub-Inspector of police attached to the Satkhira Police Station. Defendant No. 2 in the case was a collecting punchayet of the village and a1 neighbour of the plaintiff. The plaintiff alleged that he was on bad terms with the Defendant No. 2. There was a theft, in the house of Defendant No. 2. Defendant No. 2 sent the chowkidar of the-village to the thana to give information. He supplied with this information a list of articles which, he alleged, had been stolen from his house. The chowkidar when giving the information at the thana did not name any specific person as being-suspected to have been concerned in the theft. Defendant No. 1, the present appellant before us, was deputed by the superior officer to investigate the case. He arrived at the village some time at 5 or 6 in the evening. On receiving certain information from Defendant No. 2 that he suspected the plaintiff of having committed the theft, the house of the plaintiff was searched in order to discover the stolen property. Nothing was found. As the result of this the plaintiff has brought this case against these two persons claiming Bs. 400 as damages made up as follows : Rs. 100 as damages for the articles lost and damage done to his articles during the search and Rs. 300 apparently on account of mental and bodily pain that he had suffered on account of the illegal search and loss of reputation. His case would seem to be that Defendant No. 2 maliciously and without any reason or cause instigated Defendant No. 1 to search his house and that Defendant No. 1 illegally searched his house.

2. The trial Court found that the search made by Defendant No. 1 was not illegal. He, however, found that Defendant No. 2 had acted maliciously in informing Defendant No. 1 that it was likely that the stolen articles would be found in the plaintiff's house and he awarded the plaintiff Rs. 50 as damages against Defendant No. 2. So far as Defendant No. 1 was concerned he dismissed the suit with costs. Against this order the plaintiff appealed to the District Court. The District Court held that Defendant No. 2 acted maliciously in telling the police that he suspected that the stolen articles would be found in the plaintiff's house and that he had no justification whatever for making the statement to the police. So far as regards Defendant No. 1 he held that the search that this defendant had made was a general search for stolen articles and it was not authorized under Section 165, Criminal P.C.; under the circumstances be decreed the suit for Rs. 300 against both the defendants; he further ordered that the sum decreed would be realized from Defendant No. 2 in the first instance and failing that from Defendant No. 1.

3. Against this order Defendant No. 1, the Sub-Inspector of police, has appealed. He contends that the case against him and for which he has been called on to pay damages is that the search as made by him was illegal. He argues that he searched the plaintiff's house under the provisions of Section 165, Criminal P.C. Defendant No. 2 had mentioned specific articles which were alleged to have been stolen and it was for the discovery of these articles that he searched the house of the plaintiff. This he contends is justified under Section 165.

4. Mr. Roy Chowdhury who has appeared for the respondent contends that Section 165 does not give any authority for the search of the stolen property but only for specific stolen articles. Even admitting that the contention is correct the plaintiff-respondent has no case. It is quite clear from the facts that the Sub-Inspector, the appellant, went and searched the house of the plaintiff for certain specific articles, namely, the articles which had been stolen from the Defendant No. 2's house and a list of which had been given to the police. Obviously these articles were specific stolen articles. By 'specific' I presume, although the word does not find any place in Section 165 are meant articles that are specified such as for instance one pair of boot, one coat of two cups etc. The learned Subordinate Judge in dealing with this case states that Section 165, Criminal P.C., does not authorize what he describes as a general search for stolen property and with that contention I am prepared to agree. I think the learned Subordinate) Judge has misunderstood what is meant by the expression 'general search for stolen property.' If, for instance, the police go and search the house of a well-known budmash with the hope of finding stolen property in that man's house, not the property of a case which the police might have been investigating or for any specific article that would be described as a general search for stolen property; in other words where the police searches a house for stolen articles generalise and not for specific articles mentioned by a complainant as having been stolen from him. In this case as I have already stated a definite list of articles stolen had been given to the police and the Sub-Inspector obviously searched the house for these identical articles or in other words he was searching for specific articles. In this view of the case it is quite clear that the Sub-Inspecter was acting perfectly legally under Section 165, Criminal P.C., when he made the search he did.

5. The appeal must, therefore, succeed and the plaintiff's case so far as regards Defendant No. 1 must be dismissed. The appellant is entitled to his costs in all the Courts.

Page, J.

6. I agree. In this case the learned Judge in the lower appellate Court does not seem fully to have appreciated the issue which arose for decision. Two persons were impleaded as defendants, the cause of action against the first defendant being that he had illegally entered upon the plaintiff's premises for the purpose of carrying out a search, and thereby had committed trespass. The cause of action against the second defendant was that he had maliciously induced the first defendant to commit the trespass. Nevertheless the learned Subordinate Judge passed an order in which, inter alia, he held that

the suit will be decreed for Rs. 300, against both defendants. As observed above the Defendant No. 1 is a junior Sub-Inspector of police, and it appears that lie was led by over-zealousness and by Defendant No. 2. I, therefore, order the sum decreed will be realized from Defendant No. 2 and failing that from Deft. No. 1.

7. Such an order, of course, cannot be supported in law. It was not competent for the Court to pass a joint decree against two defendants with respect to each of whom there was a different cause of action. Much less was the learned Subordinate Judge justified in decreeing that the sum which the defendants were ordered jointly to pay should be realized first against one defendant, and failing satisfaction from him against the other. We are only concerned on this appeal with the decree in so far as it ordered hat the first defendant should pay damages and costs.

8. Mr. Roy Chowdhury on behalf of the plaintiff has contended that the plaintiff was entitled on damages against the first defendant because the search which he made at the premises of the person against whom the information had been lodged was illegal on two grounds, the first being that the Sub-Inspector of Police proceeded to carry out a general search for the stolen property and not a search as authorized under Sections 94 and 165 Criminal P.C. As my learned brother has pointed out a general search means a search not in respect of specific documents or things which the officer considered were necessary or desirable for the purpose of the investigation in hand, but a roving enquiry for the purpose of discovering documents or things which might involve persons in criminal liability. The things for which the Sub-Inspector carried out the search in question in these proceedings however, were, specific articles set out in a list in the possession of the police, and in respect of which information had been given to the police by the complainant. Assuming that these articles were 'things' within the meaning of Sections 94 and 165, Criminal P.C. Mr. Roy Chowdhury endeavoured to support the decree passed in favour of the plaintiff upon the further ground that a Police Officer is not entitled to search even for specific documents or things in the house of a person accused of a crime, and in support of his contention he cited Bajrangi Gope v. Emperor [1911] 38 Cal. 304, in which case Holmwood and Sharfuddin, J.J., held that

it is clear that Section 94 does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person.

9. These observations cannot now be regarded as correctly stating the law : see Prankhang v. Emperor [1912] 16 C.W.N. 1078, Bisser Misser v. Emperor [1914] 41 Cal. 261. See also Mahomed Jackariah v. Ahmed Mahomed [1888] 15 Cal. 109 and Emperor v. Brihhbhan Singh [1916] 38 All. 14. In my opinion, in carrying out the search in the circumstances disclosed by the evidence in this case the Sub-Inspector of Police was not acting illegally, and the cause of action against him has not been made out. I agree that the appeal should be allowed.


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