DHANNA Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.