SHY AM LAL SHARMA, ETC.

STATE OF l\IADHYA PRADESH

February 9, 1972

[P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.J

C, vde of Cri111i11t1l Procedure, ss. 165, 537-Reasons for search not recorded-Alleged illegality of search on this ground does not give to accused right to obstruct s11ibsequent investigation by physical assault and

wrongful confine1nent of p'erson conducting investigation-Conviction of those wh~ do so u11der s. 353 and 342 l.P.C. is justified.

Because of allegations that the lnspetor of a traffic barrier was de .. nlanding bribe from a lorry d'river u trap was arranged. It was led by a Circle Inspector (P.W. !). The decoy witness handed over Rs. 4-0 in currency notes to constable N inside the harrier office. Thereafter a signal was given to the police party.

When N saw P.W. 1 approaching he hid the aforesaid currency nots in an inner apartment of the office under nn overcoat. P .W. 1 made a search of the premises and recOvered the notes from under the -overcoat. When he was preparing the Panchnama appellant U arrived on the scene and took P.W. 1 to task for having entered his office without permission or reference to him.

He then asked N not to sign the seizure memo.

While this altercation \\as going on appellant S, the Barrier Inspector, arrived there and he also reprimanded P.W. 1 and questioned his authority. Even though P.W. I asserted that authority was conferred on him to make a search, S asked him to give him in writing that he had entered the barrier office without the permission of the person in-charge otherwise he would not be allowed to go out.

P.W. 1 agreed to give the writing at the Dak Bungalow and moved out of the office but he was brought back by force and a threat to beat him with a danda was held out.

Under threat from S and U P.W. 1 8'!'V• them a copy of the seizure memo as also a \\tiling to the effect that a search was taken. On these facts, S. U and N were charged under ss. 353 and 342 of the Indian Penal Code. The trial 'Court while holding that assault, wrongful restraint and wrongful confinement were proved against the appellants nevertheless acquitted them because the provisions of s. 165 CriminaL Procedure Code relating to search were not complied with. The High Court in appeal by the State held that the non-observance of the provisions of s. 165 Cr.P.C. were a mere irregularity and on this view convicted the appellants under ss. 332. 353 and 342 of the Indian Penal Code. The appellants in appeals by special leave contended before this Court that (i) since the search was made without recording reasons as required under s. 165 Cr.P.C. they had a right to' obstruct it and (ii) since P.W. 1 did not give them a copy of the seizure memo as required by s. 103 Cr. P.C. the entire investigation was vitiated and consequently any obstruction caused in the subsequent process of investigation \vould not constitute ariy offence.

HELD : It may be that an obstruction during the course of a search not conducted in conformity with the provisions of s. 165 Cr. P.C. might be justified but there was no warrant for the further submission that the person in \VhoSe premises a search is made or from whom articles are selzed is entllled to act in the manner the appellants had acted in preventing P.W. 1 from discharging his official duties. Obstruction to search

is to the act of the person conducting a search.

It is a defensive act but where search has ended and the persons conducting the search have left the premises, to bring them back and make them do things against their will is not an obstruction to an act but a compulsion to rnak~ them act. [ 426 H; 429 H]

There was no noncompliance with s. 103 Cr. P.C, by P.W. l. He was preparing a copy of the seizure memo as required by the section but he was prevented from completing it 'by the appellants who asked N not to sign it.

Moreover P.W. 1 had asked the appellants to come to the Dak Bungalow and take the copy. Section 103 does not say that the copy should be given then and there though qrdinarily that will be implied.

It could be given soon after the search so long as there is no opportunity to raise any suspicion or doubt as to the authenticity of articles seized. [429 D-E]

Not to allow P.W. 1 to go to the Dak Bungalow and take him forcibly from the road into the office and threaten hi!]) with a lathi to write ar.d give a memo that he had searched the office when he was willing to do so at the Dak Bungalow, was to wrongfully confine him durin~ the period he did not comply with that demand. Nor can the illegality of the search continue as contended during the whole process of investigation till the filing of the charge-sheet under s. 173 Cr.P.C. The effect of ace<pting such a proposition would be to thwart public justice. [429 F-0]

On the facts of the case the conviction of the appellant S under ss. 342 and 353 and of.. appellant U under ss. 353 and 342 read with s. 34 was justified. [430 Al

[In vie\V of the above finding the conviction of the appellants linde.r s. 332 was set aside without going into the legality of the convit.1ion under that section].

State of Madhya Pradesh v, Mubarak Ali, [1959] Supp, 2 S.C.R. 201, State of Rajasthan v. Raliman, [1960]1 S.C.R. 991, Bai Radha v. Stare of Gujarat, [1969]2 S.C.R. 799 and Public Prosecutor, Andhra Prades/1 v.

Uttaravalli Nageshwararao, A.l.R. 1965 A.P. 176.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal N<1S. 80 and 81 of 1969.

Appealsby special leave from the judgment and order dated October 7, 1968 of the Madhya Pradesh High Court in Criminal Appeal No. 519 oi 1966.

V. A. Seyid Muhammad and B. R. G. K. Achar, for the appellant (in Cr. A. No. 80 of 1969).

R. A. Gupta, for the appellant (in Cr. A. No. 81 of 1969).

I. N. Shroff and R. P. Kapur, for the respondent (in bpth the appeals).

The Judgment of the Court was delivered by

P. Jaga11moha11 Reddy, J. The appellants along with another accused, Narayan Singh, were convicted by the High Court under sections 332, 353, 342 of the Indian Penal Code and were sentenced

to one years' rigorous imprisonment on each count, the sentences A to run concurrently. These two appeals are by special leave.

On 26-5-1965, Sardar Jagat Singh, owner of a lorry made an application to the Vigilance Commissioner, Bhopal Division that the appellant in Cr!. Appeal No. 80/69 Shyam Lal Sharma, Barrier Inspector at Village Multai, District Betul, has seized the B licence of his Driver stating that if he has to pass from 1!he Barrier, he should bring Rs. 5 per trip or Rs. 40 p.m. but the Driver refused to pay him anything and has declined to go there as a result of which he is likely to suffer heavy loss. He, therefore, offered to give currency notes which may be signed and requested that a proper person may be given to him to arrest the Barrier Inspector C Sharma and his staff and sa_ve him from the corruption. On this application, Circle Inspector Rana Ranjit Singh, P.W. 1 was asked to attend to it. Accordingly, he along with Jagat Singh, his Driver and Panchas Hardeet Singh, P.W. 6 and Muana Lal, P.W. 7 proceeded to Multai Barrier by truck to arrange for a trap and catch the culprits red-handed. On arriving at the Barrier Gate, 4 cur- D reucy notes of R.s. 10 each were given by Jagat Singh, P.W. 2, to his Driver who was sent to the Barrier office along with P.W. 6 and P.W. 7 to give the same, if demanded, and after they were accepted an agreed signal was to .be given. Accordingly, the Driver went to the Barrier office along with P.W. 6 Hardeet Singh and P.W. 7 Munna Lal and after the amount was received by accused Narayan E Singh, P.W. 6 Hardee! Singh came out of the offiee and gave the agreed signal. Immediately, P.W. 1 Ranjit Singh proceeded'to the office and when the accused Narayan Singh saw him coming, he felt suspicious, went inside the inner apartment of the office and concealed the notes under the over-coat lying there. As soon as P.W.

I. entered the office, the Driver Jeet Singh informed him that the Constable has concaled the notes under the over-coat in the inner P apartment. P.W. 1 then disclosed his identity and after having his person searched, went inside the inner apartment and recovered the currency notes lying beneath the over-coat. The notes were seized and while he was preparing the Panchnama, accused Udho Prasad-appellant in Crl. Appeal No. 81169-arrived on the scene and started taking P.W.1 to task for having entered his office G without permission or referenee to him. He then asked 'llccused Narayan Singh not to sign the seizure memo. While this altercation was going on, the accused Shyam Lal arrived there and he also reprimanded P.W. 1 and questioned his authority. Even . though P. W. 1 asserted that authority was conferred upon him to make a search, accused Shyam Lal asked him to give him in writing that he had entered the Barrier office without the permission of the H person incharge otherwise he would not be allowed to go out.

Shyam Lal also picked up the notes from the table but they were

A given back on the potest of P.W. 1. P.W. ~.then assured him that he would give the seizure memo and the wntmg to say that he searched at the Dak Bungalow opposite and that accused should accompany him. He was accordingly. allowed and he then lef~ the otlice without getting the signature of the accused Narayan Smgh on the seizure Memo. But no sooner had P.W. 1 come out of the

office on to the road, Udho Prasad again insisted on the writing being given whereupon Shyam Lal caught P.W. 1 by his wait and forcibly lifted him, took him to the Barrier office and threw hin; i on a chair. The accused Udho Prasad asked accused Narayan Smgh 10 take out a Danda so that these Police officials raiding the office may be taught a lesson. Accused Shyam Lal insisted that unless P.W. 1 gives him then and there a copy of the seizure memo as also a writing to the effect that search was taken, the latter would not be allowed to leave the office.

P.W. 1 faced with this situation could not but comply with the demand made by Udho Prasad and Shyam Lal. It is only after he had given in writing that he had made a search, he was allowed to return to the Dak Bungalow and that too when Misra, Station Officer, P.W. 8 who had come there D went to telephone. Thereafter P.W. 1 gave a written information, Ex. P-4 on 2-6-65, as follows :-

"It is submitted that today-at 7 .25 a.m. I had arranged the trap at the traffic barrier Multai. After taking the search of the Barrier currency notes ofRs. 40 were found beneath the over-coa(. While I was recording the seizure-memo of these notes, Shri Sharma, Station Officer Traffic abused me and uttered bad words. Thereafter, he said to me, "You have no powers of trap". I repeatedly told him that recently the State Government have authorized the Circle Inspectors for trapping. But he did not agree and he created obstruction while I was discharging my duties. He grappled with me. This act of the Sub-In!pector traffic barrier falls under section 353 Indian Penal Code.

At that time many persons were present on the spot. Kindly offence be registered and a challan be put up in the Court according to Jaw".

We may here state, and it is not denied,· that P.W. 1 did not G record in writing the grounds of his belief that anything necessary for. t.he purpos~ of ivestigation into any offence cannot in his op1mon be obtamed without undue delay which is a condition precedent to effect a search under section 165, Cr. P.C. The trial Court wh!le accepting tlie evidence and holding that as8au!t, wrong• ful restramt and wrongful confinement are proved against the

apllants, none-the-less acquitted them because the provisions of sectmn 165, Cr. P.C. relating to search had not been complied with.

On. an appeal by the State, the High Court also accepted the prosecul!on case and agreed with the findings of the trial Court but rejected the contention of the appellants that the search was illegal A and entitled the appeliants to obstruct and man-handle P.W. 1. fa this view the non-observance of the provisions of sec. 165, Cr. P.C. were held to be a mere irregularity as P. W. 1 was throughout conducting himself in an honest and bonafide manner in the discharge of his duties and the appellants were not justified in claiming the right of private defence. In this view, it reversed the order of ace quittal and convicted the accused of the offences as aforesaid.

On behalf of the appellants it is contended that notwithstanding the findings of both .the Courts that the appellants had wrongfully restrained and obstructed P.W. 1 and also assaulted and used criminal force against him, the several acts alleged against them do not constitute any offence as they had a right to obstruct a search made C in contravention of the provisions of sec. 165, Cr. P.C. which.made the search illegal. It is accordingly submilted that when reasons are not recorded as required by sec. 165, Cr. P.C. for making a search during investigation and as P.W. 1 did not, as required under section 103, Cr. P.C., give a copy of the list of the currency notes seized from Narayan Singh to the appellants, the entire in- D vestigation is vitia\ed and consequently any obstruction caused in the subsequent process of investigation will not constitute any offence inasmuch as an investigation continus upto the date of filing a charge-she.et under sec. 173.

There is, in our view, a fallacy in these submissions. That the investigation commenced when the information of a cognizable E offence was given and a trap was laid and P.W. 1 proceeded to the barrier for laying a trap and entered the office to make a search, does not admit of doubt. This Court also held it to be so in the State of Madhya Pradesh.v. Mubarak Ali('), in which the requirements of section 165 to be complied with have been set out and analysed. Even so, to further contend that the appellants were en- F titled to act in the manner they did merely because 11he search was illegal, would be to confer a licence and afford them an unwarranted excuse to commit each and every criminal act. The provisions of section 165 deal with 5earch and seizure.

The non-conformity with any of the requirements of that provision must be confined to that part of the investigation which relates to the actual search and G seizure but once the search and seizure is complete that provision ceases to have any application to the subsequent steps in the investigation. All cases citd deal with the situation arising out of the actual search and seizure alone. Jt may be that an ob&truction during the course of a search not conducted in conformity with the provisions of sec. 165, Cr. P.C. might be justified but there is no warrant for the further submission that the person in whose premises a search is made or from whom articles are seized is entitled H

(I) [1959] Supp. 2 S.C.R. 201.

A to act in the manner the appellants have acted in preventing P.W. 1 from discharging his official duties.

The decisions of this Court to which a reference will be made, do not support the submissions made on behalf of the appellants that since the search is illegal, even for the moment accepting that to be so, the entire invtigation till the laying of the c]large-sheet 8 under sec. 173, Cr. P.C. is to be treated as illegal and would afford a justification for the acts of the appellants as held proved in this case. In The Stare of Rajasthan v. Rahman( 1) a Deputy Superintendent of Central Excise, who accompanied by an Inspector of

Central Excise, a Sepoy, a chowkidar and two motbirs, without complying with the provisions of ec. 165, Cr. P.C. had gone to the C house of the respondent with a view to search the house for finding out whether he had stored tobacco there. When they declared their intention to do so, the respondent and one Dhaman, it is alleged, obstructed the making of the search with the result that the Deputy

Supdt. fell down and received some injuries. The respondent and Dhaman were prosecuted for an offence under sec. 353, I.P.C.

D No doubt, this Court (Gajendragadkar and Subba Rao n~, as, they

then were), had held that the search made by the Qy. Superintendent in contravention of the provisions of sec. 165 of the Code was illegal but even so, it did not go into the question whether the omission to record the reasons was only an irregularity and that tlie respondents had no. right to prevent the officer from making the search because as that contention had not been raised till then it felt that there was no justification to allow it to be raised before it for the first time.

This ca9~ considered in Bai Radha v. State of Gujarat(') by Shah J. (ash then was), Ramaswami & Grover JJ.

There a search was made under sec. 15 of the Suppression of Immoral Traffic in Women & Girls Act, 1956, the proviions of which

were in pari materia with sec. 165, Cr.P.C. in that (1) if the special police officer empowered to search the premises has reasonable grounds for believing that an offence punishable under that Act has been or is being committed in respect of a woman or a girl living in any premises and that such search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant; (2) before making a search the special police officer was required to call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situa'te, to attend and witness the search. It was contended that since, these provisions have not been complied with, the conviction of the appellant was illegal. The High Court in that case was of the view that the power to conduct the search was derived from the statute and not from the recording of the reasons and, therefore, the search was not rendered illegal on

(1) [1960] l S.CR. 991. f2, !1969] 2 S.C.R. 799.

account of the contravention of sec. 15(1) of the Act, nor was there A any provision in law which rendered 1jhe evidence of the Pancha witnesses inadmissible even though sec. 15(2) had been contravened. In this view; it did not agree with the decision of the Andhra Pradesh-High Court in Public Prosecutor, Andhra Pradesh v.

U ttaravalli N ageshwararao ('), which held that the directions contained in sub-sec. 2 were of a mandatory nare. After referring B to the State of Rajasthan v. Rahman's(2 ) case, Grover, J. pointed out that that case could not be of much assistance to the appellant because no question was involved in the case before them of any public servantbeing obst:ructed in the course of a search conducted under sec. 165, Cr. P.C. The trial of the appellants was for contravention of certain provisions of the Act and the search was made in respect of this offence. In these circumstances, the non-obser- C vance of the provisions of section 15(2) was held to be not an illegality but a mere irregularity having regard to the provisions of sec. 53 7 of the Criminal Procedl!re Code, and unless it is shown that such irregularity has caused a failure of justice, t:he conviction cannot be set aside. It would, therefore, appear that this Court has not finally decided whether a sear.h already made in contravention D of the provisions of sec. 165, Cr. P.C. makes it illegal or void or merely provides a justification for an obstructtion to the search when it is in.tended or in the process of it being conducted.

On the findings in this case, i( is unnecessary to resolve. this doubt because even if the search is illegal, it does not justify any E obstruction or other criminal acilS committed against the persons who had conducted the search. The facts undisputably disclose that even after P. W. 1 was allowed to go away on the assurance that he would give a copy of the seizure memo and writing to say that a search was made, at the Dale Bunglow had asked the appel• !ants to accompany hini there, and had gone out of the office and was on the road he was forcibly seized, lifted, taken into the office F and thrown on a chair. Thereafter he was confined, there and threatened with a lathi, till1he"had complied with the demand of the appellants to give in writing that he had taken a search of the. barrier. The evidence of P.W. 1, P.W. 6, P.W. 7 and of the Station

Officer'P. N. Misra. P.W. 8, clearly supports the findings of both the courts.

G It may be observed that sec. 342, Cr. P.C. is not confined to offences against public servants but is a general section and makes a person who wrongfully restrains another, guilty of the offence under that section. A wrongful coi$lement is a wrongful restraint in such a manner as to prevent that person .from proceeding beyond a certain circwtmcribed limits. This offence has nothing to do H with the inyestigation or search and, therefore, the argument that

{l) A.LR. 1965, A.P. 176.

(2) [1960J I S.C.Jl. 991.

s. L. SHARMA v. M.P. STATE (Jaganmohan Red~, J,) 429

A the accused were entitled to obstruct P, W. 1 because he did not conform to the provisions of secion 165, Cr. P.C. is an argument of desparation. It is again contended that all that the appellants did was to request P.W. 1 to give.them in writing that a search was , made which they were entitled to ask. To put it thus is to make the act an innocuous one but considered in the light of the inexor- B able facts as established in this case, clearly make the acts of the appellants culpable. Iiy no stretch of logic or reason can the justification for obstruction during the course of a search in contravention of the provisions of sec. 165 entitle a person to force a public servant or any other person to do acts contrary to their volition. It may be mentioned that section 103 which is applicable to searches C under section 165, Gr. P.C. by virtue of clause 4 thereof, requires the person conducting the search to prepare a list of the things taken into possession .and give the person searched a copy of that list. It was exactly that which was, being done by P.W. 1 when he prepared a seizure-memo in which the details of the currency notes were written but he was prevented from completing it by the appellants asking Narayan .Smgh in whose presence in the office they D were seized by not to sign it. In these circumstances when it

appeared that the appeJ)ants had become abusive and agi:ressive, P. W. 1 told them to c2me to the Dak Bungalow wherll he would give them a copy. This in our view cannot be said to amount to non-compliance with the provisions of sec. 103 Cr. P.C. as P.W. 1 was prevented from complying therewith. Section 103 does not E say that the copy should be given then and there thouglu>rdinarily that would be implied. It could be given soon after the search so long as there is no opportunity to raise any suspicion or doubt as to the authenticity of articles seized. Not to allow P. W. 1. to go to the Dak Bungalow and take him forcibly from the road into the office and threaten him with a lathi to write and give a memo that F he had searched the office when he was willing to do so at the Dak Bungalow, is to wrongfully confine him during the period he does not comply with that demand nor can in our view the illegality of the search, if it was an illegality, continue as contended during the whole process of investigation till the filing of a charge-sheet under sec. 173, Cr. P.C. H this proposition is accepted, namely, that if the investigation at any stage is illegal, that illegality continues to G effect the subsequent investigation and justifies a person considering hlmself to be aggrieved to impede, obstruct and unlawfully prevent its further progress, then the logical implication would be to encourage people to take the law into their hands, frustrate the investigation of crimes and thwart public justice. That apart, obstruction to search is to the act of the person conducting a search. It is a H defensive act but where search has ended and the persons condut ina the search have left the premises, to bring them back and to make them do things against their will is not an obstruction to an act but a compulsion to make them act. In this view, the conviction

and sentence of. l; he appellant Shyam Lal Sharma under sec. 342 and 353 and of appellant Udho Prasad under section 353 and 342 read with sec. 34 are justified. In so far as their conviction under se.:tion 332 is concerned, the contention of the learned Advocate

is that the appellants were not charged with this offence and, therefore, they are en.t!tled to an acquittal as they are prejudiced thereby. The learned advocate for the respondent does not insist on this conviction being upheld In any case as we are confirming the conviction and sentence under the other two sections, it is not really necessary to go into the legalify of the conviction under sec.

332. Accordingly, we set aside the conviction, and sentence under

sec 332 and confirm the convictfons and sentence of the appellants under sections 342 and 353, Cr. P.C. The appeal except to the C extent indicated is dismissed.

G.C.

Ordered accordingly.