EMPEROR Vs. KUTROO

JUDGEMENT

(1.) In our view this appeal succeeds on the merits, but not upon the point of law upon which the Government sought by the appeal to challenge the decision of the learned Judge. This miscreant, as he appears to be, having the reputation of a badmash likely to be engaged in dacoities, was suspected of having arms and ammunition in his house. Thereupon a patwari, who, by the rules applicable to Kumaun, entitled to exercise the powers of a police officer, searched his house with witnesses and found gun-powder, some dynamite, and a detonator and fuse. He was thereupon convicted and sentenced to nine months rigorous imprisonment and a fine of Rs. 50. He appealed and took the point that there had been no proper search because there had been no order under Section 25 of the Arms Act, and because the search was not made in the presence of an officer specially appointed or by virtue of his office under Section 30. We agree with this view for reasons which we will state in a moment, but the learned Judge overlooked the fact that in spite of the search having been made under circumstances which rendered it not lawful, the appellant had nontheless been found guilty on perfectly plain evidence of the offence with which he was charged. In allowing the appeal and quashing the conviction the learned Sessions Judge, although he did not say so, by implication committed himself to the further proposition, namely that where the search is illegal, a parson cannot be convicted even though the evidence against him is conclusive. This is not the law. The point is covered by authority, particularly in this Court in the case of Emperor V/s. Syed Ahmad (1913) 35 All. 575, a decision of a single Judge with which we agree. In that case the search was illegal. Cocaine was found in the house of the accused and he was properly convicted. In this case the appellant was properly convicted, even although, for reasons which I am about to give, the search was illegal. In my view the argument upon which the appeal on behalf of Government has been based overlooks the significance of the term "in the course of any proceedings instituted." I think it batter not to speculate as to why these words are there, except to say that possibly the legislature thought that where an act, like the possession of arms, was equivocal, and might be innocent or might be unlawful, that question depending on the existence of a license, unlimited right of search ought not to be conferred on the police. But I entertain no doubt that their effect is to cut down the general power of search under Section 165 by a police officer. The provision is applicable where a search is to be made under the Criminal P. C., in respect of such an offence as this, in the course of any proceedings instituted in respect of, such offence. The ordinary meaning of that language is, in the course of any legal proceedings which have already begun. The use of the expression "instituting proceedings" in this Act is made plain by the preceding section where it is clearly used in reference to the commencement of some legal proceeding in a Court. That this view is the ordinary meaning of the English legal terminology is supported by the decision in Thorpe V/s. Priestnall (1897) 1 Q.B. 159. Under these circumstances I am clearly of opinion - no proceedings have been instituted - that the patwari who made the search in this case, was not legally authorised to make it. I may add, although it is not necessary for our decision that in my opinion the words "in the presence of some officer specially appointed" mean that there must be at least two persons, namely the person making the search, and the officer specially appointed within the meaning of Section 30 who is present at the search.

(2.) The appeal must, therefore, be allowed and the conviction restored, but inasmuch as the Government in the special circumstances of this case does not press for further imprisonment than that already undergone, we inflict punishment of one month and uphold the fine of Rs. 50. The accused having already served one month, need not surrender. Boys, J.

(3.) I agree. The first section to which reference has been made is Section 25 of the Arms Act. I entirely agree with the view of Mr. Justice Piggott in the case of Babu Ram V/s. Emperor (1918) 16 A.L.J. 721, that that section is intended to apply to the particular class of cases where there is some unlawful purpose alleged regardless of whether or not the person whose house is to be searched has a license for the possession of the arms. In this case, however, it is not even suggested that any action was taken under that section. It is necessary, therefore, to look elsewhere for other powers of search if actually the search is to be justified. It is clear that Section 30 of the Arms Act does not itself give any power of such to anybody. It is confined to a statement that when a search is being conducted under the Criminal P. C. or the Presidency Magistrates Act "in the course of any proceedings instituted in respect of an offence punishable under Section 19(f), such search shall be conducted in the presence of a particular officer :" it merely places certain restrictions on such powers of search as may otherwise exist under the provisions of the Criminal P. C.. We are not concerned with the Presidency Magistrates Act and we have, therefore, to turn to the Criminal P. C.. Secs.105 and 95 relate to the powers of a Court and it is not suggested here that any Court conducted or caused to be conducted any search. The Crown have, therefore, to fall back upon Section 165 of the Criminal P. C.. There is nothing in the Arms Act to limit the powers of an investigating officer under Section 165 except the two qualifications introduced by Section 30 by the words "in the course of any proceedings instituted in respect of an offence punishable under Section 19(f)" and by the requirement of the presence of a particular officer.