03 February 1970
Supreme Court







DATE OF JUDGMENT: 03/02/1970


ACT: Code  of  Criminal  Procedure (Act 5 of  1898),  ss.  165  & 166(3)Power of officer of a police station to conduct search of  premises located in the jurisdiction of  another  police station-Recording of reasons of search-Presumption in favour of  official acts under s. 114 Evidence Act,  1872-Bonafides of search-Right of private defence against police party.

HEADNOTE: On the basis of a First Information Report regarding loss of a  buffalo  lodged  at police station,  Chhainsa,  the  Sub- Inspector of that police station sought to search the  house of  the  appellants situated in the jurisdiction  of  police station,   Dankaur.   The  appellants  and  several   others resisted the search and caused injuries to the police party, for which they were prosecuted under various sections of the Indian Penal Code.  The appellants along with certain others were  convicted  by the trial court and their  appeals  were disallowed  by  the  High  Court.   By  special  leave  they appealed to this Court, contending : (i) that the officer of a   police  station  cannot  carry  out  a  search  in   the jurisdiction   of   another  police  station   without   the permission of the Station House Officer of that station;  in the  present case the reason given by the Sub-Inspector  for not  taking such permission, namely, that the  local  police was in league with the appellants did not satisfy the  terms of  s. 166(3) of the Code of Criminal Procedure;  (ii)  that the  search  was also illegal for the reason that  the  Sub- Inspector  before attempting the search did not  record  his reasons as required by ss. 165 & 166 of the Code; (iii) that being  illegal the search was not bona fide.- (iv) that  the appellants  were  entitled to the right of  private  defence since  they  thought  that the raiding  party  were  decoits dressed as policemen. HELD  :  (i) In the case of stolen cattle, time  is  of  the essence,  because  once the animal is removed and  mixed  up with  others,  it is very difficult to spot it  in  the  big herds  common  in  these places.  Therefore  if  the  police officer  had reason to believe that the police  officers  at Dankaur would take their own time because they were mixed up with  the accused party, he had full jurisdiction in  taking recourse to sub-s. (3) of S. 166 and to carry out the search himself. [493 G-H] (ii) No  questions were put to the Sub-Inspector  to  elicit from  him whether the -reasons for the search were  recorded or not.  Regard being had to the regularity of official acts it  must be presumed that the Sub-Inspector must have  taken the precaution to ’,record his reasons. [494A] (iii)     In  the circumstances of the case the  search  was



legal and bonafide. [494 B] (iv) The accused were informed by the Sub-Inspector that  it was the police party which had come and they had no  ’reason to  attack  the police party either as dacoits or  in  self- defence in any other form. [494 C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 159-  of 1967. 491 Appeal  by special leave from the judgment and  order  dated April  28,  1967  of the Allahabad High  Court  in  Criminal Appeal No. 2195 of 1964. Anil  Kumar  Gupta,  R.  A. Gupta and  Uma  Datta,  for  the appellant. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  C.J.  The appellants are five in  number  who were  prosecuted  originally with. 11 others  under  diverse sections  of the Indian Penal Code which  included  sections 147  and  148 of the Indian Penal Code and ss. 333  and  353 read with s. 149 of the Indian Penal Code.  of the  original 16  accused in the case, 11 were acquitted in the  Court  cf Session.   The  High  Court,  on  appeal,  confirmed   their convictions   with  some  modifications  and   reduced   the sentences  passed on them.  As a result of the High  Court’s judgment, one of the appellants Gopi stands convicted  under s.  326  of  the Indian Penal Code with a  sentence  of  six months’ rigorous imprisonment and under s. 148 of the Indian Penal  Code  with  a like sentence,  the  two  sentences  of imprisonment to run concurrently.  Others are convicted only under s.147 of the Indian Penal Code and have been sentenced to imprisonment already undergone by them which we are  told was  in the neighbourhood of two weeks.  They now appeal  by special leave against their conviction and sentences. The  facts of the case -are as follows.  In November 1963  a she-buffalo  belonging  to one Rajbir of  village  Chhainsa, police  station Chhainsa in the district of Gurgaon (then  a part  of  Punjab  and now a part  of  Haryana)  was  stolen. Rajbir’s  suspicion was that the appellants Gopi and  Munshi had  stolen  the buffalo and that they were  keeping  it  in village  Gunpara,  police  station  Dankaur  in  Bulandshahr district  in Uttar Pradesh.  There are  certain  allegations that  Gopi  and  Munshi demanded a sum of Rs.  200  for  the return  of  the buffalo, that the amount was  paid  but  the buffalo  was  not returned.  We are not concerned  with  the truth of this statement.      A  report of theft of  buffalo was lodged at police station Chhainsa   on   November    26, 1963.  The report was sent to Sub- Inspector Kesar     Singh (P.W. 1) who was then at another village and he proceeded in the company of three constables and some other villagers  to Gunpara.   From  the  village he took  with  him  two  other persons Rajey and Chander.  The police party was armed  with rifles.  a revolver and lathis.  They reached the  house  of Gopi and Munshi at about 11-30 p.m. and found them  sleeping in  front of their house.  Gopi and Munshi were woken up  by the police and were informed that the police party had  come to search 492 for  the  buffalo.  The prosecution case is  that  Gopi  and Munshi thereupon raised a hue and cry that the police  party had  -arrived  and on that the -appellants  and  some  other persons  violently attacked the police party causing  simple



injuries  to  Kesar Singh, Mohan Singh and Sri  Ram  of  the police force and grievous injury to Jodhra Ram.  The  injury to  Jodhra Ram was caused with a farsa on the head  and  had fractured  his skull.  Later, the police party, when it  was withdrawing,  was again waylaid and the allegation  is  that Kesar  Singh was wrongfully confined at Naurangpur.  He  was then  rescued  ’by  Mulaim Singh,  -a  constable  of  police station  Dankaur and Kesar Singh then went to Gunpa a  where he  made a report to the police station officer Dankaur  who had  by  that time returned.  It may be  mentioned  that  on behalf of the appellants -a report was also lodged at police station  Dankaur at 4 a.m. on the night of  the  occurrence, complaining that a dacoity was attempted to be committed  at the  house  of  Gopi and Munshi by  some  persons  who  were dressed in police uniform.  Investigation then followed  and the appellants with 11 others who have since been  acquitted were prosecuted. The High Court considered whether the action of Kesar  Singh in  conducting the search outside the limits of  his  police station  house was bona fide or under colour of office.   It gave  a  finding that it was ,not bona  fide  because  Kesar Singh  could  have  easily asked the  police  station  house officer of Dankaur to conduct the search under s. 166(1)  of the  Code of Criminal Procedure.  His explanation  that  the police  at Dankaur were mixed up with the appellants’  party was considered a lame excuse.  However, the High Court  felt that the action of the appellants was criminal because  they knew that it was a police party. In  this  appeal, the appellants had earlier  undertaken  to this  Court  that they would argue a pure point of  law  and that the record therefore need not be printed.  As a result, there  is  no evidence before us.  All that we have  is  the copy of the judgment of the High Court and the special leave petition  with  the grounds on which this appeal  is  to  be argued.   The only question of law argued on behalf  of  the appellants is that the search was illegal and therefore  the appellants  had  every right to resist it and  further  that they resisted the search party in the exercise of the  right of  private  defence, thinking that the raiding  party  were decoits dressed in police uniforms. As to the knowledge of the appellants about the identity  of the raiding party, we have had the evidence of the witnesses read  to us. It is -quite clear from that evidence that  the sub-inspector  Kesar  Singh had communicated  to  Gopi  -and Munshi  that this was a raid by a police party who were  out to search the premises for                             493 the  missing  buffalo.   Therefore,  the  statement  of  the appellants that they took the raiding party to be dacoits is not true and we do not, therefore, believe it. The  -argument, however, was raised- that under s. 165,  the powers of search of station house officer are limited to the limits  of  his police station and he cannot make  a  search within  the  jurisdiction of another  police  station  house officer.  Reliance was placed upon the provisions of s.  165 to  establish  this.   There is no doubt that  that  is  the normal and ordinary provision of the Code but then there  is section 166 also to be read.  Under sub-s. 1 of that section a  police  officer  may invoke the assistance  of  a  police station house officer of another jurisdiction and ask him to conduct the search.  It is submitted that this is what  the, sub-inspector Kesar Singh ought to have done.  The powers of the police station house officer, however, are not  confined to this only because sub-s. 3 of the same section gives  the right  and authority to the police station house officer  to



conduct search in the jurisdiction of another police station house  officer if he has reason to believe that delay  would be  occasioned  by requiring the officer in  charge  of  the other police station to cause the search to be made and as a result  evidence of the commission of the offence  would  be concealed  or  destroyed.  This is  what  the  sub-inspector Kesar  Singh seems to have done.  His explanation  was  that the  police of Dankaur were mixed up with the  -accused  who had stolen the buffalo and therefore he took it upon himself to  conduct  the  search  and  recover  the  buffalo.    The explanation  in our opinion is believable because no  police officer would ordinarily go into another jurisdiction unless there, are compelling reasons to do so.  A buffalo had  been stolen  a  few  weeks before and nothing had  been  done  to recover it.  In these circumstances the sub-inspector  Kesar Singh  might  well have believed that unless  he  took  some instant action, the buffalo would never be found.  Therefore his  action  was with due care and attention and  cannot  be said to be mala fide. It  was  argued however that the sub-section is  limited  to avoidance of delay and there was no case made out here  that there  was likelihood of delay it the police  station  house officer  of Dankaur had been invited to conduct the  search. In our opinion in the case of stolen cattle, time is of  the essence,  because  once the animal is removed and  mixed  up with  others,  it is very difficult to spot it  in  the  big herds  common  in  these places.  Therefore  if  the  police officer  had reason to believe that the police  officers  at Dankaur would take their own time because they were mixed up with  the accused party, he had full jurisdiction in  taking recourse to sub-s. (3)   of  s.  166 and to  carry  out  the search himself. It  was contended before us that he ought to  have  recorded his reasons in writing as required by s. 165 and also by  s. 166.  But 494 no question appears to have been put to the sub-inspector to elicit  from him whether the reasons were recorded  or  not. Regard being had to the regularity of official acts, we  are entitled  to presume that the sub-inspector must have  taken the  precaution  to record his reasons.  In  any  event,  we cannot  hold this against the prosecution, because there  is no  material  on  which we can proceed.   We  are  therefore satisfied that the search in this case was bona fide and was conducted  legally by Kesar Singh in  another  jurisdiction, because be had reason to believe that evidence, namely,  the buffalo  was  likely to be lost if he did  not  take  prompt action.   The accused were informed by him that it  was  the police party which had come and they had no reason to attack the police party either as dacoits or in self-defence in any other  form.   The offence of the  appellants  is  therefore amply brought home to them.  We see no reason to  interfere. The appeal fails and will be dismissed. G.C.                                                  Appeal dismissed. 495