{"id":215472,"date":"1972-02-09T00:00:00","date_gmt":"1972-02-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shyam-lal-sharma-etc-vs-state-of-madhya-pradesh-on-9-february-1972"},"modified":"2018-04-16T07:39:46","modified_gmt":"2018-04-16T02:09:46","slug":"shyam-lal-sharma-etc-vs-state-of-madhya-pradesh-on-9-february-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shyam-lal-sharma-etc-vs-state-of-madhya-pradesh-on-9-february-1972","title":{"rendered":"Shyam Lal Sharma, Etc vs State Of Madhya Pradesh on 9 February, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shyam Lal Sharma, Etc vs State Of Madhya Pradesh on 9 February, 1972<\/div>\n
Equivalent citations: 1972 AIR 886, \t\t 1972 SCR (3) 422<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nSHYAM LAL SHARMA, ETC.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MADHYA PRADESH\n\nDATE OF JUDGMENT09\/02\/1972\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nKHANNA, HANS RAJ\n\nCITATION:\n 1972 AIR  886\t\t  1972 SCR  (3) 422\n 1972 SCC  (1) 764\n CITATOR INFO :\n RF\t    1980 SC 593\t (12)\n\n\nACT:\nCode  of  Criminal  Procedure, ss.  165,  537---Reasons\t for\nsearch\tnot recorded--Alleged illegality of search  on\tthis\nground does not give to accused right to obstruct subsequent\ninvestigation  by physical assault and wrongful\t confinement\nof person conducting investigation--Conviction of those\t who\ndo so under s. 353 and 342 I.P.C. is justified.\n\n\n\nHEADNOTE:\nBecause\t of  allegations  that the Inspector  of  a  traffic\nbarrier\t was demanding bribe from a lorry driver a trap\t was\narranged.   It was led by a Circle Inspector (P.W. 1).\t The\ndecoy  witness\thanded\tover Rs. 40  in\t currency  notes  to\nconstable N inside the barrier office.\tThereafter a  signal\nwas  given  to\tthe  police  party.   When  N  saw  P.W.   1\napproaching lie hid the aforesaid currency notes in an inner\napartment  of the office under an overcoat.  P.W. 1  made  a\nsearch\tof the premises and recovered the notes from  Linder\nthe overcoat.  When he was preparing the Panchnama appellant\nU  arrived on the scene and took P.W. 1 to task\t for  having\nentered\t his office without permission or reference to\thim.\nHe  then asked N not to sign the seizure memo.\t While\tthis\naltercation was going on appellant S, the Barrier Inspector,\narrived there and be also reprimanded P.W. 1 and  questioned\nhis  authority.\t Even though P.W. 1 asserted that  authority\nwas  conferred on him to make a search, S asked him to\tgive\nhim  in\t writing  that he had  entered\tthe  barrier  office\nwithout the permission of the person in-charge otherwise  he\nwould  not be allowed to go out.  P.W. 1 agreed to give\t the\nwriting at the Dak Bungalaw and moved out of the office\t but\nhe was brought back by force and a threat to beat him with a\ndanda  was held out.  Under threat from S and U P.W. 1\tgave\nthem  a\t copy of the seizure memo as also a writing  to\t the\neffect that a search was taken.\t On these facts, S, U and  N\nwere charged under ss. 353 and 342 of the Indian Penal Code.\nThe  trial  Court  while  holding  that\t assault,   wrongful\nrestraint  and wrongful confinement were proved against\t the\nappellants   nevertheless   acquitted\tthem   because\t the\nprovisions  of\ts. 165 Criminal Procedure Code\trelating  to\nsearch were not complied with.\tThe High Court in appeal  by\nthe State held that the non-observance of the provisions  of\ns.  165\t Cr.P.C. were a mere irregularity and on  this\tview\nconvicted  the appellants under ss. 332, 353 and 342 of\t the\nIndian\tPenal  Code.  The appellants in appeals\t by  special\nleave contended before this Court that (i) since the  search\nwas made without recording reasons as required under s.\t 165\nCr.P.C. they had a right to obstruct it and (ii) since\tP.W.\n1  did not give them a copy of the seizure memo as  required\nby  s. 103 Cr.\tP.C. the entire investigation  was  vitiated\nand  consequently any obstruction caused in  the  subsequent\nprocess of investigation would not constitute any offence.\nHELD : It may be that an obstruction during the course of  a\nsearch not conducted in conformity with the provisions of s.\n165  Cr.  P.C. might be justified but there was\t no  warrant\nfor the further submission that the person in whose premises\na  search  is  made  or from whom  articles  are  seized  is\nentitled  to act in the manner the appellants had acted\t in.\npreventing  P.W.  1 from discharging  his  official  duties.\nObstruction lo search\n423\nis  to the act of the person conducting a search.  It  is  a\ndefensive  act\tbut where search has ended and\tthe  persons\nconducting the search have left the premises, to bring\tthem\nback  and make them do things against their will is  not  an\nobstruction  to\t an act but a compulsion to make  them\tact.\n[426 H; 429 H]\nThere  was no non-compliance with s. 103 Cr.P.C. by P.W.  1.\nHe  was preparing a copy of the seizure memo as required  by\nthe  section but he was prevented from completing it by\t the\nappellants who asked N not to sign it.\tMoreover P.W. 1\t had\nasked  the appellants to come to the Dak Bungalow  and\ttake\nthe copy.  Section 103 does not say that the copy should  be\ngiven then and there though ordinarily that will be implied.\nIt could be given soon after the search so long as there  is\nno  opportunity\t to raise any suspicion or doubt as  to\t the\nauthenticity of articles seized. [429 D-E]\nNot  to allow P.W. 1 to go to the Dak Bungalow and take\t him\nforcibly from the road into the office and threaten him with\na  lathi to write and give a memo that he had  searched\t the\noffice when he was willing to do so at the Dak Bungalow, was\nto  wrongfully\tconfine\t him during the period\the  did\t not\ncomply\twith  that demand., Nor can the\t illegality  of\t the\nsearch\tcontinue  as contended during the whole\t process  of\ninvestigation  till the filing of the charge-sheet under  s.\n173 Cr.P.C. The effect of accepting such a proposition would\nbe to thwart public justice. [429 F-G]\nOn  the facts of the case the conviction of the appellant  S\nunder  ss. 342 and 353 and of appellant U under ss. 353\t and\n342 read with s. 34 was justified. 1430 A]\n[In  view  of  the  above  finding  the\t conviction  of\t the\nappellants under s. 332 was set aside without going into the\nlegality of the conviction under that\tsection].\nState  of  Madhya  Pradesh v. Mubarak Ali,<\/a>  [1959]  Supp.  2\nS.C.R.\t201, State of Rajasthan v. Rahman, [1960]  1  S.C.R.\n991, Bai Radha v. State of Gujarat,<\/a> [1969] 2 S.C.R. 799\t and\nPublic\t  Prosecutor,\tAndhra\t Pradesh   v.\t Uttaravalli\nNageshwararao, A.I.R. 1965 A.P. 176.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  Nos.  80
\nand 81 of 1969.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nOctober 7, 1968 of the Madhya Pradesh High Court in Criminal
\nAppeal No. 519 of 1966.\n<\/p>\n
 V. A. Seyid Muhammad and B. R. G. K. Achar, for the  appel-
\nlant (in Cr.  A. No. 80 of 1969).\n<\/p>\n
R.   A.\t Gupta,\t for  the appellant (in Cr.  A.\t No.  81  of
\n1969).\n<\/p>\n
I.   N. Shroff and R. P. Kapur, for the respondent (in\tboth
\nthe appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nP.   Jaganmohan\t Reddy, J. The appellants along with another
\naccused,  Narayan  Singh, were convicted by the\t High  Court
\nunder  sections 332, 353, 342 of the Indian Penal  Code\t and
\nwere sentenced
\n424<\/span>
\nto  one\t years’\t rigorous imprisonment on  each\t count,\t the
\nsentences  to  run concurrently.  These two appeals  are  by
\nspecial leave.\n<\/p>\n
On  26-5-1965, Sardar Jagat Singh, owner of a lorry made  an
\napplication to tile Vigilance Commissioner, Bhopal  Division
\nthat  the  appellant  in Crl.  Appeal No.  80\/69  Shyam\t Lal
\nSharma, Barrier Inspector at Village Multai, District Betul,
\nhas seized the licence of his Driver stating that if he\t has
\nto pass from the Barrier, he should bring Rs. 5 per trip  or
\nRs.  40 p.m. but the Driver refused to pay him anything\t and
\nhas  declined to go there as a result of which he is  likely
\nto  suffer  heavy  loss.  He,  therefore,  offered  to\tgive
\ncurrency notes which may be signed and requested that a pro-
\nper  person  may  be  given to him  to\tarrest\tthe  Barrier
\nInspector  Sharma  and\this staff and  save  him  from\ttile
\ncorruption.   Oil  this application, Circle  Inspector\tRana
\nRanjit\t Singh,\t  P.W.\t1  was\tasked  to  attend   to\t it.
\nAccordingly,  he  along\t with Jagat Singh,  his\t Driver\t and
\nPanchas\t Hardeet  Singh, P.W. 6 and Munna Lal, P.W.  7\tpro-
\nceeded to, Multai Barrier by truck to arrange for a trap and
\ncatch the culprits red-handed.\tOn arriving at the  Barrier
\nGate,  4 currency notes of Rs. 10 each were given  by  Jagat
\nSingh,\tP.W.  2, to his Driver who was sent to\tthe  Barrier
\noffice\talong  with P.W. 6 and P.W. 7 to give the  same,  if
\ndemanded, and after they were accepted an agreed signal\t was
\nto  be given.  Accordingly, the Driver went to\tthe  Barrier
\noffice along with P.W. 6 Hardeet Singh and P.W. 7 Munna\t Lal
\nand after the amount was received by accused Narayan  Singh,
\nP.W.  6\t Hardeet Singh came out of the office and  gave\t the
\nagreed signal.\tImmediately, P.W. 1 Ranjit Singh  proceeded-
\nto  the\t office and when the accused Narayan Singh  saw\t him
\ncoming, he felt suspicious, went inside the inner  apartment
\nof  the office and concealed the notes under  the  over-coat
\nlying  there.\tAs soon as P.W. 1 entered  the\toffice,\t the
\nDriver\tJeet  Singh  informed him  that\t the  Constable\t has
\nconcealed  the\tnotes  under  the  over-coat  in  the  inner
\napartment.   P.W.  1 then disclosed his identity  and  after
\nhaving his person searched, went inside the inner  apartment
\nand  recovered\tthe currency notes lying beneath  the  over-
\ncoat.  The notes were seized and while he was preparing\t the
\nPanchnama, accused Udho Prasad-appellant in Crl.  Appeal No.
\n81\/69-arrived on the scene and started taking P.W. 1 to task
\nfor   having  entered  his  office  without  permission\t  or
\nreference to him.  He then asked accused Narayan Singh\tnot
\nto sign the seizure memo.  While this altercation was  going
\non,  the  accused  Shyam  Lal  arrived\tthere  and  he\talso
\nreprimanded  P.W.  1  and questioned  his  authority.\tEven
\nthough P.W. 1 asserted that authority was conferred upon him
\nto make a search, accused Shyam Lal asked him to give him in
\nwriting\t that he had entered the Barrier office without\t the
\npermission of the Person incharge otherwise he would not  be
\nallowed to go out.  Shyam Lal also picked up the notes\tfrom
\nthe table but they were
\n425<\/span>
\ngiven back on the protest of P.W. 1. P.W. 1 then assured him
\nthat  he would give the seizure memo and the writing to\t say
\nthat  he  searched  at the Dak Bungalow\t opposite  and\tthat
\naccused\t should accompany him.\tHe was\taccordingly  allowed
\nand he then left the office without getting the signature of
\nthe  accused  Narayan  Singh on the seizure  Memo.   But  no
\nsooner\thad  P.W. 1 come out of the office on to  the  road,
\nUdho  Prasad  again  insisted on  the  writing\tbeing  given
\nwhereupon Shyam Lal caught P.W. 1 by his waist and  forcibly
\nlifted him, took him to the Barrier office and threw him  on
\na  chair.   The accused Udho Prasad  asked  accused  Narayan
\nSingh  to  take out a Danda so that these  Police  officials
\nraiding\t the office may be taught a lesson.   Accused  Shyam
\nLal  insisted that unless P.W. 1 gives him then and there  a
\ncopy  of  the seizure memo as also a writing to\t the  effect
\nthat  search was taken, the latter would not be\t allowed  to
\nleave  the office.  P.W. 1 faced with this  situation  could
\nnot but comply with the demand made by Udho Prasad and Shyam
\nLal.   It is only after he had given in writing that he\t had
\nmade a search, he was allowed to return to the Dak  Bungalow
\nand  that  too when Misra, Station Officer, P.W. 8  who\t had
\ncome  there  went to telephone.\t Thereafter P.W.  1  gave  a
\nwritten information, Ex. P-4 on 2-6-65, as follows :-\n<\/p>\n
\t      “It is submitted that today-at 7.25 a.m. I had
\n\t      arranged\tthe  trap  at  the  traffic  barrier
\n\t      Multai.\tAfter  taking  the  search  of\t the
\n\t      Barrier  currency notes of Rs. 40\t were  found
\n\t      beneath the over-coat.  While I was  recording
\n\t      the seizure-memo of these notes, Shri  Sharma,
\n\t      Station Officer Traffic abused me and  uttered
\n\t      bad  words.  Thereafter, he said to  me,\t“You
\n\t      have  no powers of trap”.\t I  repeatedly\ttold
\n\t      him  that recently the State  Government\thave
\n\t      authorized the Circle Inspectors for trapping.
\n\t      But   he\tdid  not  agree\t and   he   created-
\n\t      obstruction while I was discharging my duties.
\n\t      He  grappled  with me.  This act of  the\tSub-
\n\t      Inspector traffic barrier falls under  section
\n\t      353  Indian  Penal Code.\tAt  that  time\tmany
\n\t      persons  were  present on\t the  spot.   Kindly
\n\t      offence be registered and a challan be put  up
\n\t      in the Court according to law”.\n<\/p><\/blockquote>\n
We may here state, and it is not denied, that P.W. 1 did not
\nrecord\tin writing the grounds of his belief that  anything
\nnecessary for the purposes of investigation into any offence
\ncannot in his opinion be obtained without undue delay  which
\nis  a condition precedent to effect a search  under  section
\n165, Cr.  P.C. The trial Court while accepting the’ evidence
\nand  holding that assault, wrongful restraint  and  wrongful
\nconfinement  are proved against the appellants,\t nonetheless
\nacquitted  them because the provisions of section  165,\t Cr.
\nP.C.  relating to search had not been complied with.  On  an
\nappeal by the State, the High Court also accepted the prose-
\ncution case and agreed with the findings of the trial  Court
\nbut re-\n<\/p>\n
426<\/span><\/p>\n
jected the contention of the appellants that the search\t was
\nillegal\t and  entitled the appellants to obstruct  and\tman-
\nhandle\tP.W.  1.  In this view\tthe  non-observance  of\t the
\nprovisions  of\tsec. 165, Cr.  P.C. were held to be  a\tmere
\nirregularity as P.W. 1 was throughout conducting himself  in
\nan honest and bonafide manner in the discharge of his duties
\nand the appellants were not justified in claiming the  right
\nof private defence.  In this view, it reversed the order  of
\nacquittal  and\tconvicted  the accused of  the\toffences  as
\naforesaid.\n<\/p>\n
On   behalf   of  the  appellants  it  is   contended\tthat
\nnotwithstanding\t the  findings of both the Courts  that\t the
\nappellants  had wrongfully restrained and obstructed P.W.  1
\nand also assaulted and used criminal force against him,\t the
\nseveral\t acts  alleged against them do\tnot  constitute\t any
\noffence\t as  they had a right to obstruct a search  made  in
\ncontravention of the provisions of sec. 165, Cr.  P.C. which
\nmade  the search illegal.  It is accordingly submitted\tthat
\nwhen  reasons are not recorded as required by sec. 165,\t Cr.
\nP.C. for making a search during investigation and as P.W.  1
\ndid  not, as required under section 103, Cr.  P.C.,  give  a
\ncopy  of the list of the currency notes seized from  Narayan
\nSingh\tto  the-appellants,  the  entire  investigation\t  is
\nvitiated  and  consequently any obstruction  caused  in\t the
\nsubsequent process of investigation will not constitute\t any
\noffence inasmuch as an investigation continues upto the date
\nof filing a charge-shept under sec. 173.\n<\/p>\n
There is, in our view, a fallacy in these submissions.\tThat
\nthe  investigation  commenced  when  the  information  of  a
\ncognizable offence was given and a trap was laid and P.W.  1
\nproceeded  to the barrier for laying a trap and entered\t the
\noffice\tto  make a search, does not admit  of  doubt.\tThis
\nCourt  also held it to be so in the State of Madhya  Pradesh
\nv. Mubarak Ali<\/a> (1), in which the requirements of section 165
\nto  be complied with have been set out and  analyzed.\tEven
\nso, to further contend that the appellants were entitled  to
\nact  in\t the manner they did merely because the\t search\t was
\nillegal,  would\t be to confer a licence and afford  them  an
\nunwarranted  excuse to commit each and every  criminal\tact.
\nThe provisions of section 165 deal with search and  seizure.
\nThe  non-conformity  with any of the  requirements  of\tthat
\nprovision must be confined to that part of the investigation
\nwhich relates to the actual search and seizure but once\t the
\nsearch and seizure is complete that provision ceases to have
\nany  application  to the subsequent steps  in  the  investi-
\ngation.\t All cases cited deal with the situation arising out
\nof  the actual search and seizure alone. it may be  that  an
\nobstruction  during the course of a search not conducted  in
\nconformity with the provisions of sec. 165, Cr.\t P.C.  might
\nbe  justified  but  there  is no  warrant  for\tthe  further
\nsubmission  that  the person in whose premises a  search  is
\nmade or from whom articles are seized is entitled
\n(1)  [1959] Supp. 2 S.C.R. 201.\n<\/p>\n
427<\/span><\/p>\n
to act in the manner the appellants have acted in preventing
\nP.W. 1 from discharging his official duties.
\nThe  decisions\tof this Court to which a reference  will  be
\nmade,  do not support the submissions made on behalf of\t the
\nappellants  that since the search is illegal, even  for\t the
\nmoment\taccepting  that to be so, the  entire  investigation
\ntill  the  laying of the charge-sheet wider  sec.  173,\t Cr.
\nP.C.  is  to  be  treated as  illegal  and  would  afford  a
\njustification for the acts of the appellants as held  proved
\nin  this  case.\t In The State of Rajasthan  v.\tRahman(1)  a
\nDeputy Superintendent of Central Excise, who accompanied  by
\nan Inspector of Central Excise, a sepoy, a chowkidar and two
\nmotbirs, without complying with the provisions of sec.\t165,
\nCr.   P.C.  had gone to the house of the respondent  with  a
\nview  to  search the house for finding out  whether  he\t had
\nstored tobacco there.  When they declared their intention to
\ndo  so,\t the  respondent  and one  Dhaman,  it\tis  alleged,
\nobstructed the making of the search with the result that the
\nDeputy\tSupdt.\tfell down and received some  injuries.\t The
\nrespondent  and Dhaman were prosecuted for an offence  under
\nsec.  353, I.P.C. No doubt, this Court\t(Gajendragadkar\t and
\nSubba Rao JJ., as they then were), had held that the  search
\nmade  by  the Dy.  Superintendent in contravention  of-\t the
\nprovisions of sec. 165 of the Code was illegal but even\t so,
\nit  did\t not go into the question whether  the\tomission  to
\nrecord\tthe  reasons was only an irregularity and  that\t the
\nrespondents had no right to prevent the officer from  making
\nthe  search because as that contention had not\tbeen  raised
\ntill  then it felt that there was no justification to  allow
\nit  to\tbe raised before it for the first time.\t  This\tcase
\nconsidered  in Bai Radha v. State of Gujarat<\/a>(2) by  Shah  J.
\n(as h then was), Ramaswami & Grover JJ.\t There a search\t was
\nmade under sec. 15 of the Suppression of Immoral Traffic  in
\nWomen  &  Girls Act, 1956, the provisions of which  were  in
\npari  materia  with  sec. 165, Cr.P.C. in that\t(1)  if\t the
\nspecial police officer empowered to search the premises\t has
\nreasonable grounds for believing that an offence  punishable
\nunder that Act has been or is being committed in respect, of
\na  woman  or  a girl living in any premises  and  that\tsuch
\nsearch\tof the premises with warrant cannot be made  without
\nundue  delay, such officer may, after recording the  grounds
\nof  his\t belief, enter and search such\tpremises  without  a
\nwarrant;  (2)  before  making a search\tthe  special  police
\nofficer\t was required to call upon two or  more\t respectable
\ninhabitants (at least one,, of whom shall be a woman) of the
\nlocality  in which the place to be searched is\tsituate,  to
\nattend and witness the search.\tIt was contended that  since
\nthese provisions have not been complied with, the conviction
\nof  the appellant was illegal.\tThe High Court in that\tcase
\nwas  of\t the view that the power to conduct the\t search\t was
\nderived\t from the statute and not from the recording of\t the
\nreasons\t and, therefore the search was not rendered  illegal
\non
\n(1) [1960] 1 S.C.R. 991.\n<\/p>\n
(2) [1969] 2 S.C.R. 799.\n<\/p>\n
428<\/span><\/p>\n
account\t of the contravention of sec. 15(1) of the Act,\t nor
\nwas  there any provision in law which rendered the  evidence
\nof  the Pancha witnesses inadmissible even though sec. 15  I
\nhad  been contravened. In this view, it did not\t agree\twith
\nthe  decision  of the Andhra Pradesh High  Court  in  Public
\nProsecutor, Andhra Pradesh v. Uttaravalli  Nageshwararao(1),
\nwhich held that the directions contained in sub-sec. 2\twere
\nof  a  mandatory nature.  After referring to  the  State  of
\nRajasthan  v. Rahman’s(2) case, Grover, J. pointed out\tthat
\nthat case could not be, of much assistance to the  appellant
\nbecause no question was involved in the case before them  of
\nany  public  servant  being obstructed in the  course  of  a
\nsearch conducted under sec. 165, Cr.  P.C. The trial of\t the
\nappellants  was for contravention of certain  provisions  of
\nthe Act and the search, was made in respect of this offence.
\nIn these circumstances, the non-observance of the provisions
\nof  section  15 (2) was held to be not an illegality  but  a
\nmere  irregularity having regard to the provisions  of\tsec.
\n537  of the Criminal Procedure Code, and unless it is  shown
\nthat such irregularity has caused a failure of justice,\t the
\nconviction cannot be set aside.\t It would, therefore, appear
\nthat  this  Court has not finally decided whether  a  search
\nalready made in contravention of the provisions of sec. 165,
\nCr.   P.C.  makes it illegal or void or\t merely\t provides  a
\njustification  for an obstruction to the search when  it  is
\nintended or in the process of it being conducted.
\nOn  the findings in this case, it is unnecessary to  resolve
\nthis  doubt because even if the search is illegal,  it\tdoes
\nnot justify any obstruction or other criminal acts committed
\nagainst the persons who had conducted the search.  The facts
\nundisputable disclose that even after P.W. 1 was allowed  to
\ngo  away on the assurance that he would give a copy  of\t the
\nSeizure\t memo and writing to say that a search was made,  at
\nthe  Dak Bunglow had asked the appellants to  accompany\t him
\nthere, and had gone out of the office and was on the road he
\nwas  forcibly  seized,\tlifted, taken into  the\t office\t and
\nthrown\ton a chair.  Thereafter he was confined,  there\t and
\nthreatened  with  a  lathi, till he had\t complied  with\t the
\ndemand\tof  the appellants to give in writing  that  he\t had
\ntaken a search of the barrier.\tThe evidence of P.w 1,\tP.W.
\n6,  P.W.  7 and of the Station Officer P. N. Misra  P.W.  8,
\nclearly supports the findings of both the courts.
\nIt may be observed that sec. 342, Cr.  P.C. is not  confined
\nto offences against public servants but is a general section
\nand makes a person who wrongfully restrains another,  guilty
\nof  the offence under that section.  A wrongful\t confinement
\nis a wrongful restraint in such a manner as to prevent\tthat
\nperson\tfrom  proceeding  beyond  a  certain   circumscribed
\nlimits.\t   This\t  offence  has\tnothing\t to  do\t  with\t the
\ninvestigation or search and, therefore, the argument that
\n(1) A.I.R. 1965, A.P. 176.\n<\/p>\n
(2) [1960] 1 S.C.R. 991.\n<\/p>\n
429<\/span><\/p>\n
the accused were entitled to obstruct P.W. 1 because he\t did
\nnot  conform to the provisions of section 165, Cr.  P.C.  is
\nan argument of desperation.  It is again contended that\t all
\nthat  the appellants did was to request P.W. 1 to give\tthem
\nin  writing that a search was made which they were  entitled
\nto ask.\t To put it thus is to make the act an innocuous\t one
\nbut  considered\t in  the light of the  inexorable  facts  as
\nestablished  in\t this  case, clearly make the  acts  of\t the
\nappellants  culpable.  By no stretch of logic or reason\t can
\nthe  justification  for obstruction during the course  of  a
\nsearch\tin  contravention  of the  provisions  of  sec.\t 165
\nentitle\t a  person to force a public servant  or  any  other
\nperson\tto  do acts contrary to their volition.\t It  may  be
\nmentioned  that section 103 which is applicable to  searches
\nunder section 165, Cr.\tP.C. by virtue of clause 4  thereof,
\nrequires the person conducting the search to prepare a\tlist
\nof  the\t things taken into possession and  give\t the  person
\nsearched  a  copy of that list.\t It was exactly\t that  which
\nwas, being done by P.W. 1 when he prepared a seizure-memo in
\nwhich the details of the currency notes were written but  he
\nwas  prevented from completing it by the  appellants  asking
\nNarayan\t Singh\tin whose presence in the  office  they\twere
\nseized\tby not to sign it.  In these circumstances  when  it
\nappeared   that\t the  appellants  had  become  abusive\t and
\naggressive,  P.W.  1 told them to come to the  Dak  Bungalow
\nwhere, he would give them a copy.  This in our vie,%, cannot
\nbe  said to amount to non-compliance with the provisions  of
\nsec.  103 Cr.  P.C. as P.W. 1 was prevented  from  complying
\ntherewith.  Section 103 does not say that the copy should be
\ngiven  then  and  there\t though\t ordinarily  that  would  be
\nimplied.  It could be given soon after the search so long as
\nthere  is no opportunity to raise any suspicion or doubt  as
\nto the authenticity of articles seized.\t Not to allow P.W. 1
\nto  go\tto the Dak Bungalow and take him forcibly  from\t the
\nroad into the office and threaten him with a lathi to  write
\nand give a memo that he had searched the office when he\t was
\nwilling\t to  do\t so at the Dak Bungalow,  is  to  wrongfully
\nconfine\t him during the period he does not comply with\tthat
\ndemand nor can in our view the illegality of the search,  if
\nit was an illegality, continue as contended during the whole
\nprocess\t of investigation till the filing of a\tcharge-sheet
\nunder  sec. 173, Cr.  P.C. If this proposition is  accepted,
\nnamely, that if the investigation, at any stage is  illegal,
\nthat   illegality   continues  to  effect   the\t  subsequent
\ninvestigation and justifies a person considering himself  to
\nbe aggrieved to impede, obstruct and unlawfully prevent\t its
\nfurther\t progress then the logical implication would  be  to
\nencourage people to take the law into their hands, frustrate
\nthe investigation of crimes and thwart public justice.\tThat
\napart,\tobstruction  to search is to the act of\t the  person
\nconducting a search.  It is a defensive act but where search
\nhas  ended and the persons conducting the search  have\tleft
\nthe premises, to bring them back and to make them do  things
\nagainst\t their\twill is not an obstruction to an act  but  a
\ncompulsion to make them act.  In this view, the conviction
\n430<\/span>
\nand  sentence of-the appellant Shyam Lal Sharma\t under\tsec.
\n342  and 353 and of appellant Udho Prasad under section\t 353
\nand 342 read with sec. 34 are justified.  In so far as their
\nconviction  under section 332 is concerned, the\t content-ton
\nof  the\t learned Advocate is that the  appellants  were\t not
\ncharged with this offence and, therefore, they are en-titled
\nto an acquittal as they are prejudiced thereby.\t The learned
\nadvocate  for  the  respondent\tdoes  not  insist  on\tthis
\nconviction  being upheld.  In any case as we are  confirming
\nthe conviction and sentence under the other two sections, it
\nis  not\t really\t necessary to go into the  legality  of\t the
\nconviction  under sec. 332.  Accordingly, we set  aside\t the
\nconviction  and\t sentence  under sec. 332  and\tconfirm\t the
\nconvictions  and sentence of the appellants  under  sections
\n342  and  353,\tCr.  P.C. The appeal except  to\t the  extent
\nindicated is dismissed.\n<\/p>\n
G.C.\t\t\t\t\t\t     Ordered\naccordingly.\n431<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shyam Lal Sharma, Etc vs State Of Madhya Pradesh on 9 February, 1972 Equivalent citations: 1972 AIR 886, 1972 SCR (3) 422 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: SHYAM LAL SHARMA, ETC. Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT09\/02\/1972 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-215472","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShyam Lal Sharma, Etc vs State Of Madhya Pradesh on 9 February, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shyam-lal-sharma-etc-vs-state-of-madhya-pradesh-on-9-february-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shyam Lal Sharma, Etc vs State Of Madhya Pradesh on 9 February, 1972 - 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