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PETITIONER: SHYAM LAL SHARMA, ETC.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT09/02/1972

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN KHANNA, HANS RAJ

CITATION:  1972 AIR  886            1972 SCR  (3) 422  1972 SCC  (1) 764  CITATOR INFO :  RF         1980 SC 593  (12)

ACT: Code  of  Criminal  Procedure, ss.  165,  537---Reasons  for search  not recorded--Alleged illegality of search  on  this ground does not give to accused right to obstruct subsequent investigation  by physical assault and wrongful  confinement of person conducting investigation--Conviction of those  who do so under s. 353 and 342 I.P.C. is justified.

HEADNOTE: Because  of  allegations  that the Inspector  of  a  traffic barrier  was demanding bribe from a lorry driver a trap  was arranged.   It was led by a Circle Inspector (P.W. 1).   The decoy  witness  handed  over Rs. 40  in  currency  notes  to constable N inside the barrier office.  Thereafter a  signal was  given  to  the  police  party.   When  N  saw  P.W.   1 approaching lie hid the aforesaid currency notes in an inner apartment  of the office under an overcoat.  P.W. 1  made  a search  of the premises and recovered the notes from  Linder 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 was going on appellant S, the Barrier Inspector, arrived there and be also reprimanded P.W. 1 and  questioned his  authority.  Even though P.W. 1 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 Bungalaw 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  gave them  a  copy of the seizure memo as also a writing  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

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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 would not constitute any 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 whose premises a  search  is  made  or from whom  articles  are  seized  is entitled  to act in the manner the appellants had acted  in. preventing  P.W.  1 from discharging  his  official  duties. Obstruction lo search 423 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 make  them  act. [426 H; 429 H] There  was no non-compliance with s. 103 Cr.P.C. by P.W.  1. 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 ordinarily 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 him with a  lathi to write and 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 during 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 accepting such a proposition would be to thwart public justice. [429 F-G] 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. 1430 A] [In  view  of  the  above  finding  the  conviction  of  the appellants under s. 332 was set aside without going into the legality of the conviction under that   section]. State  of  Madhya  Pradesh v. Mubarak Ali,  [1959]  Supp.  2 S.C.R.  201, State of Rajasthan v. Rahman, [1960]  1  S.C.R. 991, Bai Radha v. State of Gujarat, [1969] 2 S.C.R. 799  and Public    Prosecutor,   Andhra   Pradesh   v.    Uttaravalli Nageshwararao, A.I.R. 1965 A.P. 176.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  Nos.  80 and 81 of 1969. Appeals  by special leave from the judgment and order  dated October 7, 1968 of the Madhya Pradesh High Court in Criminal

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Appeal No. 519 of 1966.  V. A. Seyid Muhammad and B. R. G. K. Achar, for the  appel- lant (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  both the appeals). The Judgment of the Court was delivered by P.   Jaganmohan  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 424 to  one  years’  rigorous imprisonment on  each  count,  the sentences  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 tile Vigilance Commissioner, Bhopal  Division that  the  appellant  in Crl.  Appeal No.  80/69  Shyam  Lal Sharma, Barrier Inspector at Village Multai, District Betul, has seized the licence of his Driver stating that if he  has to pass from the 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 pro- per  person  may  be  given to him  to  arrest  the  Barrier Inspector  Sharma  and  his staff and  save  him  from  tile corruption.   Oil  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 Munna Lal, P.W.  7  pro- ceeded to, Multai Barrier by truck to arrange for a trap and catch the culprits red-handed.  On arriving at the  Barrier Gate,  4 currency notes of Rs. 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  Singh, P.W.  6  Hardeet Singh came out of the office 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. 1 entered  the  office,  the Driver  Jeet  Singh  informed him  that  the  Constable  has concealed  the  notes  under  the  over-coat  in  the  inner 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. 81/69-arrived on the scene and started taking P.W. 1 to task for   having  entered  his  office  without  permission   or reference to him.  He then asked accused 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 Person incharge otherwise he would not  be allowed to go out.  Shyam Lal also picked up the notes  from

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the table but they were 425 given back on the protest of P.W. 1. P.W. 1 then assured him that  he would give the seizure memo and the writing to  say that  he  searched  at the Dak Bungalow  opposite  and  that accused  should accompany him.  He was  accordingly  allowed and he then left the office without getting the signature of the  accused  Narayan  Singh 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 waist and  forcibly lifted him, took him to the Barrier office and threw him  on a  chair.   The accused Udho Prasad  asked  accused  Narayan Singh  to  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  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 of Rs. 40  were  found               beneath the over-coat.  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-               Inspector 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 law". We may here state, and it is not denied, that P.W. 1 did not record  in writing the grounds of his belief that  anything necessary for the purposes of investigation into any offence cannot in his opinion be obtained without undue delay  which is  a condition precedent to effect a search  under  section 165, Cr.  P.C. The trial Court while accepting the’ evidence and  holding that assault, wrongful restraint  and  wrongful confinement  are proved against the appellants,  nonetheless acquitted  them because the provisions of section  165,  Cr. P.C.  relating to search had not been complied with.  On  an appeal by the State, the High Court also accepted the prose- cution case and agreed with the findings of the trial  Court but re- 426 jected the contention of the appellants that the search  was illegal  and  entitled the appellants to obstruct  and  man- handle  P.W.  1.  In 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

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of private defence.  In this view, it reversed the order  of acquittal  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  in contravention of the provisions of sec. 165, Cr.  P.C. which made  the search illegal.  It is accordingly submitted  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  investigation   is vitiated  and  consequently any obstruction  caused  in  the subsequent process of investigation will not constitute  any offence inasmuch as an investigation continues upto the date of filing a charge-shept under sec. 173. There is, in our view, a fallacy in these submissions.  That the  investigation  commenced  when  the  information  of  a cognizable 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 (1), in which the requirements of section 165 to  be complied with have been set out and  analyzed.   Even so, to further contend that the appellants were entitled  to act  in  the manner they did merely because the  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 search 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 seizure but once  the search and seizure is complete that provision ceases to have any  application  to the subsequent steps  in  the  investi- gation.  All cases cited deal with the situation arising out of  the actual search and seizure alone. it may be  that  an obstruction  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 (1)  [1959] Supp. 2 S.C.R. 201. 427 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  investigation till  the  laying of the charge-sheet wider  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 State 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 sec.  165, Cr.   P.C.  had gone to the 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

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Deputy  Supdt.  fell down and received some  injuries.   The respondent  and Dhaman were prosecuted for an offence  under sec.  353, I.P.C. No doubt, this Court  (Gajendragadkar  and Subba Rao JJ., as they then were), had held that the  search made  by  the Dy.  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  the 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  case considered  in Bai Radha v. State of Gujarat(2) by  Shah  J. (as h 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 provisions 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  situate,  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] 1 S.C.R. 991. (2) [1969] 2 S.C.R. 799. 428 account  of the contravention of sec. 15(1) of the Act,  nor was  there any provision in law which rendered the  evidence of  the Pancha witnesses inadmissible even though sec. 15  I 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. Uttaravalli  Nageshwararao(1), which held that the directions contained in sub-sec. 2  were of  a  mandatory nature.  After referring 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  servant  being obstructed 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-observance 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. 537  of the Criminal Procedure Code, and unless it is  shown that such irregularity has caused a failure of justice,  the conviction cannot be set aside.  It would, therefore, appear that  this  Court has not finally decided whether  a  search already made in contravention of the provisions of sec. 165, Cr.   P.C.  makes it illegal or void or  merely  provides  a justification  for an obstruction to the search when  it  is intended or in the process of it being conducted. On  the findings in this case, it is unnecessary to  resolve

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this  doubt because even if the search is illegal,  it  does not justify any obstruction or other criminal acts committed against the persons who had conducted the search.  The facts undisputable 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  Dak Bunglow had asked the appellants to  accompany  him there, and had gone out of the office and was on the road he was  forcibly  seized,  lifted, taken into  the  office  and thrown  on a chair.  Thereafter he was confined,  there  and threatened  with  a  lathi, till he 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. 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  confinement is a wrongful restraint in such a manner as to prevent  that person  from  proceeding  beyond  a  certain   circumscribed limits.    This   offence  has  nothing  to  do   with   the investigation or search and, therefore, the argument that (1) A.I.R. 1965, A.P. 176. (2) [1960] 1 S.C.R. 991. 429 the accused were entitled to obstruct P.W. 1 because he  did not  conform to the provisions of section 165, Cr.  P.C.  is an argument of desperation.  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  inexorable  facts  as established  in  this  case, clearly make the  acts  of  the appellants  culpable.  By 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 under section 165, Cr.  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  Singh  in whose presence in the  office  they  were seized  by not to sign it.  In these circumstances  when  it appeared   that  the  appellants  had  become  abusive   and aggressive,  P.W.  1 told them to come to the  Dak  Bungalow where, he would give them a copy.  This in our vie,%, 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 say that the copy should be given  then  and  there  though  ordinarily  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 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

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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. If this proposition is  accepted, namely, that if the investigation, at any stage is  illegal, that   illegality   continues  to  effect   the   subsequent investigation and justifies a person considering himself  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 defensive act but where search has  ended and the persons conducting 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 430 and  sentence of-the 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 section 332 is concerned, the  content-ton of  the  learned Advocate is that the  appellants  were  not charged with this offence and, therefore, they are en-titled 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  legality  of  the conviction  under sec. 332.  Accordingly, we set  aside  the conviction  and  sentence  under sec. 332  and  confirm  the convictions  and sentence of the appellants  under  sections 342  and  353,  Cr.  P.C. The appeal except  to  the  extent indicated is dismissed. G.C.                                                 Ordered accordingly. 431