Shyam Lal Sharma, Vs. State of Madhya
Pradesh  INSC 47 (9 February 1972)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
KHANNA, HANS RAJ
CITATION: 1972 AIR 886 1972 SCR (3) 422 1972
SCC (1) 764
RF 1980 SC 593 (12)
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
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 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
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,
 Supp. 2 S.C.R. 201, State of Rajasthan v. Rahman,  1 S.C.R. 991,
Bai Radha v. State of Gujarat,  2 S.C.R. 799 and Public Prosecutor,
Andhra Pradesh v. Uttaravalli Nageshwararao, A.I.R. 1965 A.P. 176.
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
Appeal No. 519 of 1966.
V. A. Seyid Muhammad and B. R. G. K. Achar,
for the appellant (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
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 proper 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 proceeded 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 proceededto 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 overcoat. 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 in charge otherwise he would not be allowed to go out.
Shyam Lal also picked up the notes from 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 createdobstruction
while I was discharging my duties.
He grappled with me. This act of the SubInspector
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
prosecution case and agreed with the findings of the trial Court but re426
jected the contention of the appellants that the search was illegal and
entitled the appellants to obstruct and manhandle 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 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.
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 investigation. 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)  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 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 ofthe 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)  1 S.C.R. 991.
(2)  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 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)  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 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.