1. This rule is unopposed and we have not had the advantage of hearing the case argued on behalf of the Crown. The learned District Magistrate in showing cause states that he has nothing to add to what is in the judgment. In the judgment of the learned Additional Sessions Judge the point of law is fully and ably discussed. But we are not in agreement with the decision of the lower appellate Court as to the effect of the non-compliance with the provisions of Clause (5) of Section 165 of, the Code. This is a new provision introduced in the Code by the Amending Act of 1923 and it is, obviously intended as an extra safeguard to protect individuals against general or roving searches. To hold that the omission to comply with the provisions of this clause did not affect the powers of search given to police officers under the Code would have the effect of rendering this clause in many cases a dead letter. We hold that it is essential that a police officer conducting a search under Section 165 or Section 166 of the Code should send forthwith to the nearest Magistrate copies of the record that he has prepared before undertaking the search and as this was not done in the present case the conviction of the petitioners for resisting the police and for rioting with the common object of deterring the Sub-Inspector from discharging his duty to search a suspected person's house must be set aside.
2. We accordingly make this rule absolute. We set aside the conviction and sentence passed on the petitioners and direct that they be discharged from their bail bonds. The fines, if paid, will be refunded.