JUDGMENT
N.L. Untwalia, J.
1. The sole appellant in this appeal was committed to the Court of Sessions by Shri S.N. De, Judicial Magistrate, 1st Class, Monghyr, to stand his trial on charges under Sections 353, 307 and 323 of the Indian Penal Code. The learned Sessions Judge, Monghyr, by his judgment and order under appeal has acquitted the appellant of the charge under Section 307. Penal Code, but has convicted him under Section 353, Penal Code, and sentenced him to undergo rigorous imprisonment for one year. In the Sessions Court in place of the charge under Section 323, the! charge under Section 332 of the Indian Penal Code was framed and the appellant has been convicted for that charge also and has been sentenced to undergo rigorous imprisonment for two years. The sentences have been directed to run concurrently.
2. The prosecution case is that on the 26th October, 1961, Narain Prasad Singh (P. W. 1), Officer-in-charge of Jamalpur Police Station, was investigating a case under Section 457/380, Indian Penal Code, of the said police station and in that connection he suspected that the stolen articles might be found in the house of the appellant in Mahalla Nayagaon within the jurisdiction of Jamalpur police Station. P. W. 1 thought that if the house of the appellant was not quickly searched, the incriminating articles might be removed from there and so he along with Shrikrishna Singh (P. W. 3), Havildar of Nayagaon Town Outpost, and two search witnesses, Sarjug Tanti (P. W. 4) and Baldeo Singh (P. W. 5) went to the house
of the appellant at about 6 P.M. on the 26th October, 1961. P. W. 1 called out the appellant) after reaching his house. He came out of it with a chhura in his hand and stood in front of the) searching party near the door of his house and the Sub-Inspector of Police (P, W. 1) told him that a theft was reported and that he had full belief that the stolen articles would be found in his house and that he wanted to search his house in presence of the two witnesses. The appellant then said that he would not allow his house to be searched. P. W. 1 replied that he must search his house and that the appellant could not legally obstruct him, from doing so. He asked him to take his personal search. The appellant wanted to strike P. W. 1 on his neck with the chhura in his hand and said that he would kill him. The Havildar (P. W. 3) wanted to snatch away the chhura from the hand of the appellant but the latter attempted to strike him. The Havildar had a small stick in his hand and he struck the hand of the appellant with the stick as a result of which the chhura fell down. Thereafter, there was a scuffle between the Havildar and the appellant and the latter, according to the prosecution version of the occurrence, bit the hand of the havildar with his teeth and scratched his nose with his nails and he further assaulted him with stone chips. Subsequently, P. W. 1 and the search witness (P. W. 4) caught hold of the appellant and took charge of the chhura. A search list was prepared. Later on, the house of the appellant was searched but nothing incriminating was recovered. P. W. 1 prepared a fardbeyan (Ext. 2) on his own statement on the basis of which first information report (Ext. 3) was drawn up by P. W. 1, who then directed the Junior Sub-Inspector (P, W. 7) to make investigation of the case. After investigation the charge sheet was submitted by the investigating officer (P. W, 7).
3. The defence of the appellant is that he committed no offence and the false case has been engineered against him by the police officers with the false evidence of their stock witnesses (P. Ws. 4 and 5). The enmity between the appellant and the havildar is said to be over some quarrel for free supply of pan (betel) to the havildar. The defence further is that when P. Ws. 1, 3, 4 and 5 arrived at the house of the appellant, he did not obstruct them from searching his house but he told the police officers that they should bring independent search witnesses for searching his house, as the witnesses brought were not respectable and the appellant had no faith in them. Upon this, the havildar (P. W. 3) is said to have caught hold of the leg of the appellant and pulled him whereupon he fell down on the road and then the havildar is alleged to have got up on the chest of the appellant and began, to press his neck by one hand and assaulted him with his other hand. In order to extricate himself from the clutches of the havildar, the appellant bit him on his hand with his teeth and scratched his nose with his nails.
4. The learned Sessions Judge has not believed the prosecution case for the reasons given by him in his judgment that the appellant wielded a chhura towards the neck of P. W. 1, or wanted to kill him and in that view of the matter he has
acquitted the appellant of the charge under Section 307 of the Penal Code, but has convicted him on other counts as stated above.
5. The question is as to whether the prosecution has proved “in this case that the appellant has committed any offence, if so, what?
6. Many points have been submitted by Mr. Amin Ahmad, learned advocate for the appellant, in support of the appeal I shall state them and deal with them at the appropriate places.
7. The first point urged is that the search attempted to be made and made by P. W. 1 was not legal and hence the appellant had a right to use force even to the extent of causing hurt in exercise of the right of private defence. P. W. 1 being the officer-in-charge of the Jamalpur Police Station had gone to make the search not armed with a search warrant issued by any Magistrate, but in exercise of his power under Section 165 of the Code of Criminal Procedure. In State of Rajasthan v. Rehman, AIR 1960 SC 210 it has been pointed out by Subba Rao, J., who delivered the judgment on behalf of the Court:
”Under Section 165 four conditions are imposed : (i) the police officer must have reasonable ground for believing that any thing necessary for the purposes of an investigation of an offence cannot, in his opinion, be obtained otherwise than by making a search, without undue delay,’ (ii) he; should record in writing the ground of his belief and specify in such writing as far as possible the things for which the search is to be made; (iii) he must conduct the search, if practicable, in person and (iv) if it is not practicable to make the search; himself, he must record in writing the reasons for not himself making the search and shall authorise a subordinate officer to make the search after specifying in writing the place to be searched and, so far as possible, the thing for which search is to be made. As search is a process exceedingly arbitrary in character, stringent statutory conditions are imposed on the exercise of the power.”
8. It is, therefore, necessary to examine in this case as to whether these conditions had been fulfilled by P. W. 1 before he attempted to search the house of the appellant.
9. In his examination-in-chief P. W. 1 has stated that he suspected that the stolen articles of, the theft case in which he was making investigation on the 26th October, 1961, would be found in the house of the appellant, because he had been charge-sheeted in many theft cases and he thought that if his house was not quickly searched, the stolen articles might not be available later. The first condition upon this evidence, therefore, was satisfied and there is nothing in the cross-examination to indicate that this statement of P. W. 1 is wrong. The third condition, is also satisfied because P. W. 1 himself was the officer-in-charge of the police station and, therefore, the satisfaction of the fourth condition was not required in this case. But the question is as to whether the prosecution has proved that the second condition was satisfied namely, as to whether P. W. 1 recorded in writing the grounds of his belief and specified in such writing, so far as possible, the thing for which search was to be made. In this
regard, his evidence in examination-in-chief is silent. In cross-examination he stated “I did not enter in the station diary on that date that I was going to search the house of the accused. These facts are mentioned in the case diary. I had no previous search warrant to search the house of this accused.” In the whole of the evidence, therefore, there is no line that P. W. 1 had complied with the second requirement as pointed out by the Supreme Court and as required by the express terms of Section 165 of the Code of Criminal Procedurs.
10. Mr. Sarwar Ali, learned counsel for the State, fairly conceded that the evidence given on behalf of the prosecution is not sufficient to indicate that P. W. 1 had fulfilled the second condition of Section 165 of the Code of Criminal Procedure. The mere recording of the fact in the case diary that he was going to search the house of the accused was not in the eye of law a compliance with that requirement. He, however, submitted that in absence of the evidence to the contrary that he had not complied with the requirement it should be presumed that he had complied with it as all official acts must be presumed to have been done in accordance with law and not against it. I am not prepared to accept this argument. In my opinion, to prove- a charge of causing obstruction to a public servant in order to prevent him from discharging his duties, it must be shown by the prosecution that he was discharging his duties lawfully and in accordance with law. P. W. 1 claims that he went to the house of the appellant to make search, presumably in exercise of his power under Section 165 of the Code of Criminal Procedure. If that be so, he must satisfy by legal ‘and reliable evidence that he had gone there to exercise his power after fulfilment of all the requirements of the Section. I may also add that Sub-section (5) of that Section requires that copies of any record made under Sub-section (1) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and there is no evidence in this case that the Sub-Inspector (P. W. 1) had sent any such copy to the Magistrate obviously because I can legitimately presume that he had not made any record in writing under Sub-section (1) as he was required to do. That being so, in my opinion, the attempt to search and the search itself later on was illegal, as the officer-in-charge of the police station had not fulfilled all the conditions precedent to the exercise of such power.
11. In support of this argument, learned counsel for the appellant has placed reliance upon the case of Gopi Mahto v. Emperor, AIR 1932 Pat 66. Ram Parves Ahir v. Emperor, AIR 1944 Pat 228 and the Supreme Court case referred to above, namely, AIR 1960 SC 210. In Gopi Mahto’s case, the Sub-Inspector of Police was making investigation into the case of theft of a bicycle and during investigation he received information that the stolen bicycle was concealed in the house of one of the petitioners of that case, Avadh Kurmi. He intimated to the petitioners that he would search their house. The petitioners told him not to enter the house and when he insisted upon entering it, they pushed him back along with the constable, who was with him. In close proximity with this incident what happened was that petitioner Avadh
Kurmi then went inside the house, took a bicycle and went away with it by another door. The Sub-Inspector and the constable, who was with him, ran to arrest Avadh Kurmi, but they were prevented by petitioners Gopi and Mahabir from going in that direction. The learned Additional Sessions Judge held that the procedure adopted by the Sub-Inspector for the search of the house was not strictly legal as he had failed to comply with the requirements of Section 165 of the Code of Criminal Procedure in the matter of making a record and sending a copy of it to the Magistrate; hence the petitioners were not guilty of an offence under Section 353 of the Penal Code. He, however, convicted them under Section 352 of the Penal Code. In that connection Dhavle, J. said:
“I find it difficult to hold that he was acting, in good faith, within the meaning of Section 52, I. P. C., and the petitioners were, it seems to me, justified in pushing him and his constable back in order to prevent a search which was not strictly in accordance with the law.”
In that view of the matter, the conviction under Section 352 of the Penal Code was also set aside., Of course, the conviction of Gopi and Mahabir under Section 341, Penal Code, was maintained which is not material for the purpose of the point under discussion in the instant case.
12. In Ram Parves Ahir’s case, (AIR 1944 Pat 228) another police officer was deputed by the officer-in-charge of the Police station to make the search but without complying with the requirements-of either Sub-section (1) or Sub-section (3) of Section 165 of the Code of Criminal Procedure. I would like to quote here a few lines from the judgment of Agarwala, J. as he then was, which, in my opinion, goes against the contention of Mr. Sarwar Ali that there should be a presumption in favour of the prosecution that the search was being conducted legally by the officer-in-charge of the police stations. The lines are:
“The station diary has not been produced and there is no evidence whatsoever on the record that the Sub-Inspctor Azam ever complied with the provisions of Sub-section (1) of Section 165 Criminal P. C., and his own evidence clearly shows that the provisions of Sub-section (3) were not complied with. His omissions in this respect have necessarily led him also not to comply with another duty cast upon him by Sub-section (5) of Section 165.”
Thereafter, the effect of non-compliance with the; provisions of Sub-sections (1) and (3) of section 165 was considered and it was held that in such a situation the accused committed no offence in resisting the search of Ram Parves’s house (the house, which was being searched in that case), because they were entitled to obstruct or resist the search made by a person who had no authority whatsoever to make it. I am conscious of the fact that in that case a subordinate police officer had gone to make the search and he had no written ‘authority from his superior officer as required by Sub-section (3) of section 165 of the Code of Criminal Procedure. But that distinction is not enough to persuade me to hold that P. W. 1 being himself officer-in-charge of the police station had authority to search and non-compliance of one of
the conditions of Sub-section (1) would not lead to the conclusion that the search was illegal. It would be noticed that the finding in Ram Parves Ahir’s case, (AIR 1944 Pat 228) was that there was no compliance even with the provisions of Sub-section (1) by Sub-Inspector Azam, who had deputed Sub-Inspector Raghubans Singh to make the search.
13. In Chander Prasad v. Emperor, AIR 1937 Pat 501 Khwaja Muhammad Noor, J., has said :
“The recording of reason before search is provided for both under the Criminal Procedure Code and under the Excise Act and is intended to protect the liberty of citizens and avoid useless and unjustified searches. If an officer before proceeding to search has to record his reason, he will have to apply his mnd to the facts and the sufficiency of the information on the basis of which he wants to search.”
In that case, admittedly, no reason was recorded before attempt to search was made and in that view of the matter the conviction under section 353 of the Penal Code of the petitioner was set aside.
14. In absence of any evidence adduced on behalf of the prosecution I am inclined to hold that P. W. 1 did not record the reasons for making the search of the house of the appellant and did not record in writing the articles for which he wanted to make the search. That being so, it must be held that the action of the searching party in going to the house of the appellant for making the search was not legal. The subsequent fact that no incriminating article was recovered from the house of the appellant cannot lead to the conclusion that the Sub-Inspector of Police (P. W. 1) could not have reasonable ground for believing that the search of the appellant was necessary. But that does show the necessity of compliance with the requirement of making a record of such reasons before a police officer goes to search the house of a citizen. If the law requires him to fulfil certain conditions before exercise of his power in order to safeguard against mala fide, whimsical and arbitrary searches of the property and the house of a citizen, then the law must be complied with, otherwise it will depend upon the sweet-will of a particular police officer to go and make a search of any premises of any citizen and it is for the protection against that kind of invasion ‘f the liberty of the people that a further safeguard has been provided by the Legislature in Sub-section (5) of Section 165 for bringing the matter to the knowledge of the nearest Magistrate, who may apply his mind and see as to whether the police officer had justification to proceed to make a search of any premises in exercise of the powers under section 165 of the Code of Criminal Procedure.
15. It is, therefore, obvious that the conviction of the appellant under sections 332 and 353 of the Penal Code is illegal and unjustified and it must be set aside. But an argument in the alternative was advanced on behalf of the State to alter the conviction of the appellant from Section 332 to one under section 323, Penal Code, for causing simple hurt to havildar
(P. W. 3). In my opinion, however, on the facts and circumstances of this case, this argument also cannot be accepted.
16. In the Sessions Court, the appellant was charged under section 358 of the Penal Code for using “criminal force to Narain Prasad Singh, a public servant, to wit, officer-in-charge, Jamalpur P. S. by attempting to strike him with Chhura on his neck with intent to deter him from discharging his duty as such public servant, that is making search of the house of the appellant in connection with a theft case. Firstly, I am inclined to take the view in connection with the charge under section 353, Penal Code, that when the charge under section 307 for attempting to strike P. W. 1 with a chhura on his neck in an attempt to kill him has failed, then the story of use of force by hurling chhura on his neck has also got to fail. But even assuming, as was contended by Mr. Sarwar Ali, that the prosecution story that the appellant hurled chhura and thereby showed criminal force to Narain Prasad Singh be believed, it is obvious that merely show of force will not be an offence on the facts and in the circumstances of this case, much less an offence under section 353, Penal Code, when I have found that P. W. 1 had not gone to the house of the appellant to discharge his duty as a public servant after fulfilling the requirements of law.
17. The second charge against the appellant in the Court of Session was under section 307 of the Penal Code of which he has been acquitted. The third charge stated that the appellant had “voluntarily caused hurt to Police Havildar Shri Krishna Singh, a public servant, in the discharge of his duty as such public servant and thereby committed an offence punishable under section 332 of the Indian Penal Code.” In view of my finding that the search was illegal, this charge has also got to fail and the conviction of the appellant under section 332 of the Penal Code cannot be maintained. But the question is as to whether on the facts and in the circumstances of the case, his conviction should be converted into one under section 323 of the Penal Code, simpliciter for causing simple hurt to the havildar (P. W. 3). In order to decide this question, I shall have to refer birefly to the evidence adduced by the prosecution in regard to the occurrence.
18. P. W. 1 stated in examination-in-chief that Havildar Shri Krishna Singh wanted to snatch away the chhura from the hand of the accused. The latter then wanted to strike the havildar. The havildar had a small stick in his hand and he struck the hand of the accused with that stick as a result of which the chhura fell down. He further told that the Havildar wanted to arrest the accused but the latter obstructed whereupon there was a scuffle between them and the accused gave a teeth bite on the hand of the havildar and scratched the face and the nose of the havildar with his nails and further assaulted him with rora. P. W. 3 stated in this connection that the accused wielded dagger towards the neck of Darogajee and then he gave blow on the hand of the accused with a stick, which was in his hand. The dagger fell down on the ground and then the accused had a scuffle with him.
There was patka patki between him and the accused in which the accused bit his right hand with his teeth, scratched his nose with his nail and assaulted him with stone chips which he picked ftp from the road. The evidence of P. W. 4 is that the havildar wanted to snatch away the chhura from the hand of the accused and thereafter he had scuffle with this accused in course of which the accused gave teeth bite to Darogajee and also scratched his nose with nails. The accused further assaulted the havildar on his chin with stone chips. The witness made a mistake in his deposition by stating Darogajee for the Havildar. P. W. 5 has stated that the havildar wanted to snatch away the chhura from, the hand of the accused, thereupon the latter wanted to assault him. The havildar assaulted the accused with a stick whereupon the chhura fell down on the ground and then there was scuffle between the accused and during the scuffle the accused inflicted injuries on the person of the havildar by teeth bite, nails and stone chips. In the first information report, which was drawn up on the fardbeyan of P. W. 1 himself, the story introduced by P. W. 1 in court that the Havildar wanted to arrest the accused and the latter obstructed whereupon there was a scuffle is not found mentioned nor is the story supported by the evidence of any of the other three witnesses namely, P. Ws. 3, 4 and 5. The reason for the scuffle, therefore as given by P. W. 1, has got to be rejected.
19. Before I proceed to discuss this point further, I may dispose of an argument put forward on behalf of the appellant that the prosecution story that he came out from the house with a Chhura in his hand is false and should be rejected. In this connection, it was argued that P. W. 6, a witness of the locality, who arrived at tie place of occurrence did not say that he found a chhura either in the hand of the appellant or near him. It was also argued that because the appellant had enmity with the Havildar, this false case by introducing chhura in the hand of the appellant has been instituted against him and that in view of the finding of the learned Sessions Judge that the prosecution story in connection with an offence under Section 307, Penal Code, was exaggerated, it should be held further that the prosecution story is too much exaggerated and false even in regard to the chhura itself being found in the hand of the appellant.
20. I am not impressed by this argument. P. W. 6 arrived at the place of occurrence when the scuffle was going on between the havildar and the appellant. The chhura must have been picked up when it fell from the hand of the appellant before the arrival of P. W. 6 or it may be that he did not notice it even if it be supposed that it was lying on the ground. During the scuffle the appellant had no chhura and that is the evidence of all the witnesses. Merely because P. W. 6 did not find the chhura or did not say about the chhura, it cannot be said that the prosecution case that the appellant came out with the chhura in his hand is untrue. The charge under section 307 has failed because of the discrepancies in the statement of P. W. 1 in the fardbeyan, Ext. 2, his statement in court and the
statements of other witnesses, and that is no ground for holding that the whole of the prosecution story in relation to the chhura is untrue.
21. The plea of the appellant that a false and much exaggerated case has been instituted against him because of his alleged enmity with the havildar has, in my opinion, been rightly rejected by the learned Sessions Judge. The appellant entered into defence and examined defence witnesses but did not examine any person in support of his plea that the havildar because of the non-supply of Pan free of cost was inimically disposed towards him. I, therefore, hold that the appellant came out of his house with a chhura in his hand as is the prosecution case.
22. To resume the discussion as to whether the appellant can be convicted under section 323, Penal Code, it is to be noted first that no injury was caused by the appellant to any person with the chhura. The Chhura, if at all, was used, as found by the learned Sessions Judge, for merely at show of force in order to obstruct P. W. 1 and his party from making illegal search of the house. Therefore, the importance of the chhura is not in the fact of its use for causing any injury but it has got its significance and, therefore, I have to decide this fact, in relation to the subsequent part of the occurrence. The ‘question is, after the chhura fell down from the hand of the appellant on receiving a blow with a stick by the havildar, what led to the scuffle between the havildar and the appellant. The prosecution is almost silent on the point, except giving the reason in the evidence of the Sub-Inspector (P. W. 1), which I have already disbelieved. Nobody says that after the chhura fell down from the hand of the appellant, the latter wanted to pick it up and user it for assaulting anybody of the prosecution party. In that situation, the evidence of the prosecution remains simpliciter at this that there was scuffle between the havildar and the appellant. If during the course of the scuffle–which scuffle was on the evidence in the record of the case, without any rhyme and reason and in an attempt to make, illegal search — can it be said that the appellant was guilty of having caused simple hurt to the havildar with his teeth and nails or even with stone chips, during the course of the scuffle?
23. P. W. 2 is the doctor, who had examined the injuries on the person of the havildar and he found the following injuries on his person.
1. Abrasion 1″ x 1/3″ on the posterior aspect of the lower one-third of the right forearm on ulnar side.
2. Four teeth marks on the dorsal aspect of the right forearm lower third infero medial to the injury No. 1.
3. One abrasion on the knuckle of the right middle finger 1/6″ x 1/6″.
4. One oblique abrasion on the bridge of the nose 1/2″ x 1/2″.
5. One linear abrasion mark on the bridge of
the nose 1/6″ x 1/8″.
6. One contusion 11/2″ x 1/6″ on the dorsal aspect of the left hand,
7. One abrasion on the anterior part of the right leg just below the knee joint 1/6″ x 1/6″.
8. An abrasion on the left knee 1 /6″ x 1/6″.
The injuries on the person of the appellant, which admittedly he received during the scuffle, were examined by the jail doctor Dr. A.K. Chakravarty (D. W. 1) and he found the following injuries on the person of the appellant:–
1. Inflammation of the back of right palm.
2. 2 parallel bruises each 3″ x 1/2″ at upper part and left side of the back.
3. One abrasion 2″ x 1″ at topmost part, and outer aspect of right thigh.
4. Inflammation of both the feet.”
24. In cross-examination he stated that injuries 1 and 4 could be caused by sprain cr fall, and injuries 2 and 3 could be caused by fall on hard blunt substance. The type of the injuries found on the person of the appellant and the evidence of D. W. 1 cross-examination do suggest that during the scuffle the Havildar threw down the appellant on the ground and he received the injuries thereby, except injury No. 1, which was given to him by the stick blow on the hand. That being so, can it be said that the case of the appellant that in order to extricate himself from the clutches of the havildar he had to use his teeth and nails is not true or probable?
25. In my opinion, the answer must be given in favour of the appellant when the appellant was relieved from the possession of the chhura by the blow given by the Havildar on his hand, I find, no reason which led to the scuffle between the Havildar and the appellant and if I can guess one it is this that the Havildar wanted to restrain the appellant from going towards the house in order to obstruct the illegal search and during the course of that scuffle, if the havildar received simple injuries, I am inclined to hold that the appellant had a right of private defence of person and did not exceed it when he caused simple hurt to havildar with his teeth, nails and stone chips in order to extricate himself from the clutches of the havildar. I do not mean to suggest here that he had a right of private defence of property and he inflicted those injuries in order to prevent or obstruct the police officers from committing the illegal search, but surely, as I have said above on the facts and in the circumstances of the case when the havildar entered into the scuffle with the appellant, the latter had a right to protect his person by inflicting simple injuries on the havildar.
26. The other minor points urged on behalf of the appellant in support of his plea that there was no occurrence at all as alleged by the prosecution are not necessary to be discussed as they are all of very minor character and are of no consequence, either,
27. In the result, the appeal succeeds and is allowed. The conviction and the sentence or the appellant under sections 353 and 332 of the Indian Penal Code are set aside. He is acquitted of all the charges and he shall be released from the bail bond.