RAM PRASAD Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Patna, which was originally heard by Dhavle, J. and then by a Division Bench of this Court and has now been placed before us under the orders of the Hon ble the Chief Justice. The three accused persons were tried under Section 187, Indian Penal Code, for having refused to sign a search-list prepared by the Excise Sub-Inspector of Barh in connexion with a search in the house of one Gainu Pasi. The case for the prosecution was that the Excise Sub-Inspector raided the house of Gainu Pasi and recovered four bottles of liquor, five seers of fermented mahua, and some apparatus in presence of the three accused persons. The articles seized were labelled and the three accused persons signed the labels. Accused Earn Prasad actually granted a receipt for having received the seal with which the bottles were sealed up. The Sub-Inspector prepared a search-list (Ex. 2) and requested the three accused persons who attended as witnesses to sign the search list.

(2.) The prosecution case was that the accused were dissuaded by the mahalla people and therefore they refused to put their signatures on the search list in spite of the warning given to them by the Sub-Inspector as to the consequences attending their refusal to do so. There were three witnesses on behalf of the defence and four on behalf of the prosecution. The defence was that the accused refused to sign the list because they wanted to mention in it that the bottles were planted in the house by the Sub-Inspector and his staff, but the Sub-Inspector did not permit them to do so; and they further alleged that the Sub-Inspector handled them roughly for their attitude. The defence set up was not accept, ed by the Court and ultimately the accused were convicted and sentenced under Section 187, Indian Penal Code to pay a fine of Rs. 25 each, in default to undergo simple imprisonment for one and a half month.

(3.) Manifestly the search was held under the provisions of Section 103, Criminal P.C. which runs as follows: (1) Before making a search under this Chapter (Ch. 7, of Processes to Compel the Production of Documents and other Moveable Property, and for the Discovery of Persona Wrongfully Confined), the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) The occupant of the place searched or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request. (4) When any person is searched under Section 102, Sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person, who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187, I.P.C.