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Report No. 37

261. Section 100-Notice and procedure for inquiry.-

An important point which was brought to our notice in the course of our discussions in connection with section 100 was, that the section does not provide for the issue of a notice to the opposite party, and injustice, it was stated, resulted from this position. The facts in a Calcutta case illustrate the possible hardship.1

In that case, an application under section 491 of the Code was made by one Jogendra Nath Shaw Chowdhury on the allegation that he had been duly married to the infant girl, but that the girl's father had lodged a false complaint before the Presidency Magistrate of the Northern Division that the girl was being wrongfully detained by the Applicant and obtained a search-warrant from the said Magistrate under section 100 and that, subsequently, the said Magistrate had made over possession of the girl to her said father. He also alleged, that the father's application to the Magistrate was without notice to him, and that he got no opportunity of showing cause against the orders made as above stated. The search-warrant had been issued on the 30th August, 1898, the order for possession also having been made on the same day.

1. In the matter of section 491, Criminal Procedure Code and in the matter of Shoibalini Dassee, (1898) 2 CWN 333 (Notes of cases) (Jerkins J.).

262. The observations which Jerkins J. made while granting a rule on behalf of the alleged husband are interesting:

"Jerkins J.: How is it that the Magistrate came to make that order without notice to the Applicant? He undoubtedly had a right to appear and show cause and in fact it seems strange that an order of this kind under section 100, Cr. P.C., should have been made without notice, or even a search-warrant issued without such notice."

(Ultimately, the rule was discharged, as the High Court was not satisfied on the affidavits that there had been a marriage. This was, however, without prejudice to any suit which the applicant might bring).

263. Our attention was also drawn to other cases which show how Magistrates sometimes1 misuse sections 100 and 552, or which stress the need for a proper inquiry 2-3

We are not, however, inclined to recommend an amendment of the section.

1. Lalmani Devi v. State, AIR 1958 Pat 689 (691), para. 5.

2. Lilabai, AIR 1958 MB 24 (25), para. 8.

3. See, however, Chepa Mohton, AIR 1928 Pat 550 (Warrant could be issued on a mere petition).

264. It has also been suggested,1 that an elaborate procedure for the inquiry under section 100, be provided for.

Some of the points made in the suggestion are:-

(a) to require that a statement on oath of the informant, and of at least one witness, should be put in before issuing a search-warrant;

(b) to provide for temporary custody pending hearing;

(c) to fix a date and hold an inquiry in the presence of the opponent.

We are not, however, inclined to recommend any such elaborate procedure.

1. F. No. 3(2)/55-L.C., Pt. I, S. No. 70.

265. Sections 101 and 102.- No change is needed in existing sections 101 and 102.

266. Section 103.-

The recommendation in the 14th Report1 to delete the words "(inhabitants) of the locality" in section 103 was considered. We think that it is not safe to make such a change. Practical difficulties notwithstanding, the principle on which this requirement rests is a salutary one. Its deletion will mean that in practically every case witnesses from any locality will be brought to be present as a search.

1. 14th Report, Vol. 2.

267. Section 103-Various other suggestions.-

Various other suggestions1 relating to section 103 were considered by us.

Thus, a Deputy Inspector General of Police2 has stated, that respectable inhabitants do not like to associate themselves with searches against their neighbours. This requirement of the law should (according to his suggestion), therefore, be dispensed with, when a raiding party is headed by a Police Officer of the rank of Inspector of Police or above. We are not in a position to accept the suggestion.

The condition of "respectability" ought not to be dispensed with, even where the search is carried out by any Inspector or higher officer etc. Section 103 is intended to safeguard the rights of a house-holder, and also to ensure that the search conducted by the police should be honest and genuine.3 Its object is to ensure that it may not be possible to bolster up a false case4-5.

1. F. No. 3(2)/55-L.C., Pt. II, S. Nos. 33 and 34(d).

2. F. No. 3(2)/55-L.C., Pt. II, S. No. 34(d).

3. Nirmal Singh v. Emp., AIR 1919 All 41 (42).

4. Lachmi Narain v. Emp., AIR 1919 Pat 452 (453).

5. Emp. v. Balai Ghosh, AIR 1930 Cal 141 (143).

268. The legislature has made this provision to ensure fair dealing and a feeling of confidence and security amongst the people, and in order to give effect to this object, it is necessary that the witnesses to search should be absolutely unprejudiced and uninterested in the result1. "It is only when Panch witnesses are independent that the liberty of the subject can be safeguarded, as far as searches are concerned."2

1. Rajabather (in re:), AIR 1959 Mad 450 (452, 456, 457), where Ramaswami J. has summarised the law and reviewed the case-law.

2. S.K. Fernandez v. State, AIR 1951 Bom 468 (469), para. 3 (Chagla C.J. and Gajendragadkar

269. It has been suggested by a State Government,1 that in section 103(1) after the words "in which the place to be searched is situated" the words "or if no inhabitant of the locality can be procured, any other two or more witnesses" should be added.2

We cannot accept the suggestion. The proposed relaxation, if enacted, is likely to be resorted to in all cases, thus robbing the section of its utility.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33.

2. Compare 14th Report, Vol. 2.

270. A High Court Judge has suggested1 the insertion of a provision that a finding or sentence shall not be altered on account of non-compliance with section 103. We regret that we are unable to accept this suggestion. It is the law (speaking broadly),2 that such non-compliance by itself does not justify the reversal of a conviction or sentence. But a pointed provision to that effect would be unwise.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

2. See para. 240, infra.

271. In this connection, we would like to state below, in brief, some of the main points that emerge from the case-law.

(a) Where the witnesses are not respectable inhabitants of the locality, that circumstance would not invalidate the trial, but would only affect the weight of the evidence in support of the search and recovery;1-2

(b) At the same time, the necessity of due compliance with the provisions regarding searches should be emphasized. See the object of the section as explained in the under-mentioned case3 holding that the object is to ensure fair dealing and a feeling of confidence and security amongst the public, in regard to a somewhat necessary invasion of a private right.

The provisions of the section designed are for greater certainty and security,4-5 and its object is presumably to obtain as reliable evidence as possible of the search and to exclude the possibility of any malpractice of any kind.

(c) There may be cases where the accused would be prejudiced by non-compliance. In one case,6 the High Court had to make these observations-

"It appears to me that it is high time that steps should be taken to stop this wanton disregard of statutory provisions by the police of these provinces".7

(d) It is not, therefore, advisable to put a provision in a pointed form, saving such irregularities. Since the trial is not vitiated even now,8 no provision is needed.

1. Sunder Singh v. State, AIR 1956 SC 411 (415).

2. Radhakishen v. State of Uttar Pradesh, 1963 Supp 1 SCR 408: AIR 1963 SC 822.

3. Govindan (in re:), AIR 1959 Mad 544 (547).

4. Emp. v. Ma Thein, AIR 1936 Rang 15 (17).

5. Emp. v. Balai Ghose, AIR 1930 Cal 141 (143).

6. Bishnath Rai v. Rex, AIR 1950 All 147 (148), para. 3 (Seth J.).

7. See also Dr. Jai Nand v. Rex, AIR 1949 All 291 (299).

8. Kochan Vilay, ILR 1960 Ker 916: AIR 1961 Ker 8 (FB).

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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