Full Judgment Text
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PETITIONER:
GOPI & ORS.
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT:
03/02/1970
BENCH:
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
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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
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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
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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