Chhangani, J - (1.) THE eleven appellants along with one Hanuman were tried by the Sessions Judge, Jhunjhunu for offences under secs. 395, 332, 333 read with Sec. 149, Indian Penal Code. THE learned Sessions Judge by his order dated 3rd January, 1963 gave benefit of doubt to Hanuman and found the appellants guilty and recorded the following convictions and sentences against each one of them - u/s 395 IPC. . . . . . . . . . . . . . . . . . . . . three years u/s 333 IPC. . . . . . . . . . . . . . . . . . . . . three years u/s 332 IPC. . . . . . . . . . . . . . . . . . . . . . . . one year's THE sentences were directed to run concurrently. Aggrieved by this judgment, they have filed this joint appeal.
(2.) THE facts on which the appellants ware prosecuted may be briefly stated as follows - On 24th December, 1960 a case under sec. 457 and 380, Indian Penal Code, was registered at Police Station, Hansi in Punjab on the report of one Parmeshwari at No. 209. On 5th of January, 1961, Station House Officer, Police Station, Hansi Mr. Malik Dayanand deputed Mohanlal PW/9 Assistant Sub-Inspector of Police, Hansi, along with Jagdishlal, Assistant Sub-Inspector of Police, Hansi, and constables Satveer PW/10, Kaliram and Govindram, to proceed to Singhana to make some investigation. Mohanlal along with the above police officials as also with Parmeshwari PW/11, Sohanlal, Bhagchand and Juglal reached Singhana in connection with the investigation of the case under sec. 457 and 380 Indian Penal Code, of Police Code of Police Station, Hansi in the morning of 6th January, 1961. After reaching there, Mohanlal PW/9 sent a tehrir to the Incharge of the Police Station, Singhana, requesting for assistance in investigation. After sending the tehrir, he with the members of his party went to the mohalla of Meenas in village Singhana. THE Station House Officer, Police Station, Singhana was not at Singhana and, Shri Sher Singh Head Constable PW/17 was incharge of the Police Station, Singhana, at the relevant time. Sher Singh along with constable Hanuman Singh left the Police Station, Singhana after making entry Ex. P. 2 in the Rojnamcha and reached the mohalla of Meenas of Singhana where Mohanlal and his party-men were waiting for them. Mohanlal and Sher Singh tried to trace out Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas of Singhana who were being suspected as being concerned in a theft case but they were not available at their houses. Mohanlal then thought of conducting the house searches of Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas. Jagan PW/2 and Chandra PW/1 were summoned as motbirs and in their presence searches of the houses of Matadeen and Ramjilal were conducted. Matadeen and Ramjilal were not present at the time of the search but the searches were made in the presence of Mst. Jaraw wife of Matadeen and Mst. Patasi wife of Ramjilal. During the course of searches some clothes and cash amounting to 225/- were seized and taken into custody and were entrusted to constable Satveersingh. It may be mentioned here that the property which was seized and taken into custody was not identified by Parmeshwari PW/11 the complainant in the theft case who had accompanied the Punjab Police party in connection with the investigation of the case. According to Mohanlal this property was suspected to be of another theft case registered at the Police Station, Hansi. After completing the searches of the houses of Matadeen and Ramjilal and recovering and seizing the properties, the police party proceeded towards the house of Prahlad and stood in a chowk in front of the house of Prahlad and were having consultations amongst themselves. In the meanwhile all of a sudden forty to fifty persons armed with 'barchis' and lathis including the present appellants attacked the police party and caused injuries to the members of the police party. Gokal, with whom we are not concerned in the present case, one of the assailants snatched the revolver possessed by Mohanlal PW/9, got on a wall and opened fire with that revolver. One bullet hit Satveer constable of Punjab Police force. The assailants injured Mohanlal, Satveer, Jagdishlal, Sohanlal, Sher Singh and others and further took away the property which was recovered from the houses of Matadeen and Ramjilal and taken into custody. They further took away the investigation file of the case No. 209/60 under sec. 457 and 380, Indian Penal Code of the Police Station, Hansi, Government revolver, blankets, pagris, gun and cartridges from the members of the police force as also from others who had accompanied the police party. The injured police officers went to Singhana Dispensary where first aid was rendered to them. On the advice of the Medical Officer of that Dispensary they went to Pilani and got their injuries examined and treated in the Birla Public Hospital. It may be mentioned here that when the assault was going on Shersingh P. W. /17 rushed to the Police Station, Singhana and made an entry Ex. P. 3 in the Rojnamcha stating the names of the appellants amongst the assailants and the fact of their having taken further aid and arms and leaving for the spot. He came back to the scene and then taking Satveer, who was at the house of some person in the neighbourhood, went to the dispensary. He also got himself examined for his injuries and then with the police force left in search of the assailants. He, however, prepared no first information report at that time. At Pilani, the Station House Officer, Police Station, Pilani, having learnt of the occurrence went to the Birla Public Hospital and recorded statement of Mohanlal P. W. /9 which was forwarded to the Police Station, Singhana, for registration of a case. On receipt of this report of Mohanlal with a forwarding letter from Police Station, Pilani, the Station House Officer, Singhana registered a case against 19 accused persons. The medical examination revealed the following injuries on the persons of the various injured - Sohanlal - 1. Contusion 2" x 1" on the left leg upper third front. 2. Contusion 4" x 1" on the left buttock. 3. Contusion 3" x 1" right forearm upper half. 4. Contusion 5" x 1" right side back. 5. Contusion 1" x 1" on left side of head. 6. Contusion 1" x 1" on the bridge of nose. Contused lacerated wound 2" x 1/4" by scalp deep in the top of head. Contusion 1" x 1" upper lip. Mohanlal - 1. Contusion 3" x 1" with fracture of right ulna (right forearm ). 2. Contusion 3" x 1" with fracture of left ulna in the left forearm. 3. Contusion 4" x 1" on right arm. 4. Abraded contusin 2" x i" with fracture of the Patella and Femur. 5. Abraded contusion 1" x 1" right knee. 6. Small contused lacerated wound left thumb. 7. Contused lacerated wound 2" x 1/8" x skin deep on the right side of head. 8. Contused lacerated wound 1" x 1/8" x skin deep on the left side of head. Jagdishlal 1. Contusion 4" x 1" on the back lower thoracic region. 2. Contusion 3" x 1" on the left calf. 3. Contusion 3" x 1' on the right calf. Satvir Singh - 1. Punctured wound 1/2" diameter - on the right side of chest near axilla - with laceration of skin around over 1/2" - radious with fracture of Ant. end of 4th rib and posterior l/3rd of 6th rib with pnumo-thorax. 7. After necessary investigation a charge sheet was submitted against twelve persons in the Court of the Sub-Divisional Magistrate, Khetri, for offences under sec. 395, 397, 307, 332, 333, 158, 148, 149 and 186, I. P. C. The other accused were said to be absconding. 8. The prosecution examined twenty witnesses and produced twenty seven documents in support of it's case. The accused denied their guilt and pleaded alibi. At the trial, on behalf of the accused, seven submissions were made for recording an order of acquittal in their favour. Broadly stated the case of the accused was that the searches made by Mohanlal and the members of the police party were in contravention of the provisions of sec. 166 Criminal Procedure Code, and were without jurisdiction and that the party of Meenas including the appellants if they are proved to have been the members of that party were justified in recovering the property back from the police officers in the exercise of the right of private defence of property. Secondly, their case was that in view of the delayed first information report, the conduct of Shersingh in not recovering any article from the possession of the accused and unsatisfactory nature of the evidence of identification by the witnesses other than Shersingh and the infirmities in the testimony of Shersingh, the participation of the appellants in the incident is not proved. The trial Judge discussed the various statements made by the appellants and recorded the following conclusions - 1. Looking to all the circumstances the searches made by Satvirsingh PW/10 on the direction of Mohanlal, Assistant Sub-Inspector Police PW/9 were not in accordance with the provisions of sec. 166 and 165, Criminal Procedure Code. 2. To my mind the recoveries made by Mohanlal from the house of Ramji Lal and Matadeen were not legal. 3. The illegality of the seizure of the articles from the houses of Ramjilal and Matadeen cannot hold the accused in exonerating them of the guilt. The police party was not actually attacked while carrying out the illegal searches of the houses of Matadeen and Ramjilal. It was further observed in this connection that the accused not only took the possession of the properties which were recovered but they even carried away the case file, revolver etc. of the police employees of Police Station, Hansi which they had no right to carry away. 4. The Punjab Police employees were acting in good faith and under the colour of their office in taking the searches though they may not be strictly legal. 5. The learned Judge also over ruled the arguments made on the basis of the non-recovery of the articles, delay in lodging first information report, non-production of some of the persons who were admittedly present at the time of the incident and found no force in them. 6. As regards the identification of the accused by Jagdishlal PW/7, Mohan Lal PW/9 and Sohanlal PW/14, the trial Judge held that the evidence of identification by these witnesses was not very convincing and he utilised that evidence only for the purpose of corroborating the evidence of Shersingh PW/17. Sher Singh's evidence was found quite satisfactory by the Sessions Judge and finding corroboration of bis evidence by these witnesses, the learned Sessions Judge found all the appellants guilty. The learned counsel for the appellants in the first instance contended that the appellants must be held to have acted in the exercise of the right of private defence of property in recovering the property from the police officers which was illegally seized. It was contended that Mohanlal PW/9 had no justification to take searches of the houses of Matadeen and Ramjilal. It was strenuously contended that he had no right to recover clothes and cash which were not identified by Parme-shwari PW/11 on whose report a case of theft was registered at the Police Station, Hansi. At any rate, recovery of cash was wholly arbitrary and malafide. It was urged in this connection that sec. 99 of the Indian Penal Code did not deprive the party of the Meenas including the appellants of their right of private defence of property inasmuch as the act of the police officer went beyond the limits of not being strictly justifiable and also that the police officers were not acting in good faith. The learned Deputy Government Advocate on the other hand, contended that the police officers were acting in good faith under colour of the office and that irregularity in affecting searches and seizing property were not of a serious nature and they did not have the effect of making the act of the police officers without jurisdiction. Learned counsel for the appellant relied upon Prag vs. Emperor (1), Madra Damn vs. Emperor (2) and Nandsingh vs. The State (3 ). The learned Deputy Government Advocate has relied upon Abdul Ghani vs. Emperor (4), Ahmd Subhan vs. Emperor (5), Narsayya Lachmayya vs. The State (6), Emperor vs. Gulabrai (7), Kandasasmi Goundan, In re (8), Ramji Ahir vs. Emperor (9), Emperor vs. Bhopo (10), In re Ganpathia Pillai (11) and Lachuman Singh vs. Emperor (12) on the question of the applicability of sec. 99, Criminal Procedure Code.
(3.) AN examination of these cases shows that the learned Judges decided the question of the applicability of sec. 99, Indian Penal Code, on the facts and the circumstances of the particular case and it is unnecessary to notice all these cases in detail. For the proper enunciation of the principle embodied in sec. 99, Criminal P. C. it will be proper to refer to the oft quoted passage from Mayne's Commentary on Criminal Law which reads as follows - "the word 'not strictly justifiable by law' seems to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction; to cases where an official has done wrongly what he might have done rightly; not to cases where the act could not possibly have been rightly done. Explaining the object of enacting sec. 99 Indian Penal Code, Ramaswami, J. in In Re-Ganapathia Pillai (11) made the following pertinent observations: - "under sec. 99, Penal Code, it is enacted that (a) an act done or attempted to be done, (b) by a public servant, (c) acting in good faith, (b) under colour of his office, (e) though that act may not be strictly justifiable by law, does not give rise to the right of private defence. These clauses in favour of public servants rest partly on the probability that their acts will be lawful, in which case resistance must necessarily be unlawful; partly on the theory that resistance unnecessary since the law will set right what has been wrongly done in its name; and lastly on the ground that it is good for society that public servants should be protected in the execution of their duty even where they are in error. But in order to secure the protection of sec. 99, I. P. C. it is essential that the act done or attempted to be done by a public servant must be (a) in good faith (b) under colour of his office, (c) though that act may not be strictly justifiable by law. " Expressing my respectful agreement with the passage of Mayne quoted above,and the observations of Ramaswami, J. I may add that sec. 99, Indian Penal Code, is an attempt on the part of the legislature to reconcile the two rival needs- one of lending protection to the public servants in the exercise of their public duties which may sometimes be of a little difficult nature, even when there might be some errors in the discharge of those duties and the other, need of preventing the exercise of powers by the public servant from degenerating into pure arbitrariness and protecting the public from the arbitrary and capricious acts of the public servants and to strike a proper balance between them. It is on account of these considerations that the protection has been granted to only those acts which are not strictly justifiable in law has been denied to those acts which are ultra vires and have no legal basis. Similarly, sec. 99 Indian Penal Code, requires that before a member of the public can be deprived of the right of private defence it must be shown that the public servant was acting in good faith, Now the question whether a particular act is one which is not strictly justifiable by law or is one which is altogether without jurisdiction has to be determined on a consideration of the facts and the circumstances of each case. As regards good faith, bearing in mind the negative definition of "good faith" as given in sec. 52 of the Indian Penal Code, it must be safely stated that good faith has no reference to the moral elements of honesty and right motive which are involved in the popular significance of "good faith" and which are predominant in the positive definition enacted in the other Acts of the Legislature. To establish "good faith" under the Indian Penal Code it is necessary to prove that the person pleading good faith acted with due care and attention and an honest blunderer cannot be protected under sec 52 without establishing the exercise of due care and attention. Of course, good faith requires no logical infallibility but due care and attention. How far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and the intelligence of the person whose conduct is in question. From the foregoing discussions, it follows; whether an act of a public servant falls within sec. 99, Indian Penal Code, or not, is in the ultimate analysis a question of fact to be determined on the facts and the circumstances of each case and it will be hardly proper to lay down any test in the abstract for deciding such a question. Taking up the: question whether the act of Mohanlal was a mere irregular act not strictly justifiable by law or was an act completely lacking in jurisdiction, it will be proper to set out the following facts - That Mohanlal was an Assistant Sub-Inspector of Police in the employ of the Punjab Police Force. He came down to Singhana in connection with investigation of case No. 205 of 1960. He addressed a tehrir Ex. P. 1 to the Incharge of the Police Station, Singhana for rendering assistance in investigation. After the arrival of Shersingh Head Constable, incharge of the Police Station, Singhana, Mohanlal himself took the initiative in the matter of making searches and the searches were actually carried out by Satvir (PW/10 ). The learned Sessions Judge has observed that the searches conducted by Mohanlal were not in accordance with the provisions of secs. 165 and 166, Criminal Procedure Code. The learned Deputy Government Advocate, however, has disputed the conclusion of the Sessions Judge on this point and has contended that the searches in the present case cannot be said to be without jurisdiction. Sec. 165, Criminal P. G. provides for search by an officer incharge of the police station or certain other police officers subordinate to him within the limits of a particular police station and has no direct bearing in the present case. Sec. 166, Criminal P. C. provides for a case when an officer incharge of one police station stands in need of making a search in the limit of another police station. Sec. 166, Criminal Procedure Code reads as follows - "166. (1) An officer in charge of a police station or a police officer not being below the rank of Sub-Inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station. (2) Such officer, on being so required, shall proceed according to the provisions of sec. 165, and shall forward the thing found, if any, to the officer at whose request the search was made. (3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-sec. (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making an investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station, in accordance with the provisions of sec. 165, as if such place were within the limits of his own station. (4) Any officer conducting a search under sub-sec. (3) shall forthwith Send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under sec. 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sec. 165, sub-secs. (1) and (3 ). (5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub-sec. (4) : Provided that he shall pay for the same unless the magistrate for some special reasons thinks fit to furnish it free of cost. " It is clear that only an officer incharge of the police station or the police officer not below the rank of Sub-Inspector of Police making investigation can require an officer incharge of another police station to cause a search to be made in any place in which the former officer might cause search to be made within the limits of his own station. The learned Deputy Government Advocate suggests that the words "sub-Inspector Police" appearing in the phrase "a police officer not being below the rank of Sub-Inspector" should be construed to include "assistant Sub-Inspector Police" and on this interpretation of sec. 166, Criminal Procedure Code, Mohanlal P. W. 9, who was an Assistant Sub-Inspector of Police was competent to require Sher Singh incharge of the Police Station, Singhana to make a search. I regret, I am unable to agree with the learned Deputy Government Advocate. On a consideration of the language of sec. 166, Criminal Procedure Code and the context in which the words "sub-Inspector of Police" appears, I am unable to hold that the terra "sub-Inspector" should be treated to include "assistant Sub-Inspector of Police". On this interpretation of sec. 166, Criminal P. C. I have no hesitation in coming to the conclusion that Mohanlal who was merely an Assistant Sub-Inspector of Police, was not competent to make a requisition to the officer incharge of Police Station, Singhana, to make a search within the limits of Police Station, Singhana. It may also be significantly observed that Mohanlal in fact made no requisition requiring Sher Singh to make a search. The learned Government Advocate then placed reliance upon the language of sub-sec. (3) of sec. 166, Criminal P. C. and contended that any police officer of Hansi Police Station making investigation could undertake a search if there was reason to believe that delay occasioned by requiring an officer incharge of another police station to cause a search to be made under sub-sec. (1) might result in the evidence of the commission of the offence being concealed or destroyed. He emphasised the words "or a police officer making an investigation" appearing in sub-sec (3 ). Mr. Jain appearing for the defence pointed out that the expression police officer making an investigation' should be construed in the light of sub-sec. (1) and should be taken to mean a police officer not below the rank of Sub-Inspector of Police. ;