BISSAR MISSER Vs. EMPEROR

JUDGEMENT

(1.) This Rule was issued on the District Magistrate of Muzaffarpur to show cause why the convictions of the petitioners Bissar Misser and Moti Misser, under Sections 332 and 353 of the Penal Code, respectively, should not be set aside in view of the decision of the Court in the case of Bajrangi Gope v. Emperor (3) and why the sentence passed on the petitioner, Rameswar Misser, under Section 342 of the Penal Code, should not be revised.

(2.) The facts found are thus stated in the judgment of the learned Sessions Judge on appeal: A Sub-Inspector of Police, who is the complainant in the case, went with Bisseswar Marwari to search the house of a servant of his, one Sirjawan Misser, whom he had charged with criminal breach of trust in respect of a sum of Rs. 340. The object of the search was to discover the money and a bag in which it was contained. A house was pointed out to the Sub-Inspector by Bisseswar as that of Sirjawan. The Sub- Inspector called two residents of the village, and one resident of a neighbouring one who were close at hand, to attend as search witnesses and proceeded to search the house. One Santok Misser, who has also been convicted in this case, went before the search into the house and removed the females. When one room had been searched, and a search of a second had begun, the three appellants came into the house and told the Sub-Inspector to get out or they would assault him. Bissar Misser was carrying a sickle. Words were exchanged and a scuffle followed in the course of which Bissar cut the Sub-Inspector on the hand with his sickle. Moti Misser knocked him down and Rameswar Misser and the other three accused administered a beating to Bisseswar.

(3.) The only additional facts which need be stated are that Sirjawan had been arrested before the search took place, that the house searched belonged to him and his brothers, the petitioners Bissar and Moti Misser, and that Bisseswar was shut into a room prior to his being assaulted. As to the convictions under Sections 332 and 353 and the case of Bajrangi Gope v. Emperor (1910) I.L.R. 38 Calc. 304 there appears to be some misunderstanding as to what was actually decided in that case. No doubt some of the observations of the learned Judges, before whom the case came, suggest that they were at the time disposed to take the view that Section 94 of the Code (upon which the power to search conferred by section. 165 in some degree depends) "does not refer to stolen articles or to any incriminating document or thing in the possession of an accused person." But in the first place that wide proposition is not supported by the case to which reference was made: Ishwar Chandra Ghoshal v. Emperor (1908) 12 C.W.N. 1016. In that case the facts were peculiar. An accused person who was actually on his trial for offences under Sections 171 and 193 of the Penal Code was called upon to produce a document: the document was not produced and because it was not produced the prosecution failed. The accused was then prosecuted and convicted under Section 175 of the Penal Code for disobedience of the order to produce the incriminating document. All that was held was that Section 94 of the Criminal Procedure Code did not apply to the case of an accused person on his trial--the last three words are not without importance- -so as to render him liable to punishment under Section 175 of the Penal Code for such disobedience. That is a very different thing from saying that the person or house of the accused could not have been searched for the document either before or during the trial. In the second place the learned Judges guarded themselves from expressing a final opinion on the subject in its broader aspect. What they said was that in the case before them it was "sufficient to hold that Section 165 did not authorise a search for stolen property in the house of the absconding offender" and that, remarkable as it might appear, there was no other section which would cover such a search. Now the scope of the decision was thus expressly narrowed, and, as it seems to us, the words which it was intended to emphasize were the words "stolen property" and not the words which follow "in the house of the absconding offender". The particular objection to the search which the learned Judges had in their minds was not that the search was made in the house of an accused person but that the search was made for stolen property generally, whereas under Section 165 a search might only be made for a particular document or thing. That this is the true meaning of the language employed appears to be clear from what is said just before that Section 165 "does not authorize a general search for stolen property", and also from the way in which the case is referred to in the subsequent case of Prankhang v. King-Emperor (1912) 16 C.W.N. 1078 decided by the same learned Judges. The learned Judges say there that the opinion had apparently been entertained that the ruling in Bajrangi Gopi v. Emperor (1910) I.L.R. 38 Calc. 304 "if it intended to lay down that a police officer is not empowered to search an accused s house for stolen property relevant to the case, is not a correct statement of the law," and they dispose of that opinion as follows: "We desire again to point out that the law does not empower a police officer to search an accused s house for anything but the specific article which has been or can be made the subject of summons or warrant to produce. A general search for stolen property is not authorised, and the law cannot be got over by using such an expression as stolen property relevant to the case. Such expressions are vague and misleading and the terms of the law are extremely specific." This passage is meaningless unless there is some right to search the house of an accused person. Some right of this kind is implicitly, if not explicitly, recognized.