MOHAN SHANIYA v. STATE — 1961 DIGILAW 70 (GUJ)

V. B. RAJU, J. ( 1 ) THIS is an appeal by one Mohan Shaniya against the judgment of the Additional Sessions Judge at Baroda convicting him under sec. 302 I. P. Code for having caused the death of one Bai Guji the wife of Malia and under section 324 I. P. Code for causing hurt to the complainant Bai Lali with a scythe and for having caused hurt to Bai Babali the wife of Bachu. ( 2 ) [his Lordship after discussing the evidence further stated]: The prosecution also relied on the find of a Datarda when the house of the accused was searched by head constable Atmaram on the 23rd. The search was made by the head constable Atmaram and not by the P. S. I. The P. S. I. has deposed that he had instructed head constable Atmaram to search the house of the accused for a Datarda. On the subject of searches made by the police in the course of the investigation one has to bear in mind the provisions of section 165 Cr. P. C. which reads as follows: (1) Whenever an officer in charge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station. of which he is in charge or to which he is attached and that such thing cannot in his opinion be otherwise obtained without undue delay such officer may after recording in writing the grounds of his belief and specifying in such writing so far as possible the thing for which search is to be made search or cause search to be made for such thing in any place within the limits of such station. (2) A police-officer proceeding under sub-section (1) shall if practicable conduct the search in person. (3) If he is unable to conduct the search in person and there is no other person competent to make the search present at the time he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search and he shall deliver to such subordinate officer an order in writing specifying the place to be searched and. so far as possible; the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place. (4) The provisions of this Code as to search warrants and the general provisions as to searches in sec. 102 and section 103 shall so far as may be apply to a search made under this section a police officer in charge of the police station or a police officer making an investigation can make a search only in the circumstances stated in sub-section (1) of Sec. 165 Cr. P. C and in such a case he should record in writing the grounds of his belief specifying in such writing the place to be searched and so far as possible the thing for which search is to be made. If the officer is unable to conduct the search in person he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search and he shall deliver to such subordinate officer an order in writing specifying the place of search and so far as possible the thing for which such search is to be made. As the order must be in writing specifying the place to be searched and the thing for which search is to be made the order would attract the provisions of sec. 91 of the Evidence Act which provides that if any matter is required by law to be reduced to writing no oral evidence can be given of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the Evidence Act. It is therefore not open to the P. S. I. to depose to the terms of the order or the instructions given by him to the head constable Atmaram. In the absence of the order in writing the search made by head constable Atmaram would be unauthorised. The P. S. I. should conduct the search himself and if he was unable to do so and if he asked the head constable Atmaram to make the search he should have complied with the provisions of sub-section (3) of sec. 165 of the Cri. Pro. Code. If he did not do so the search conducted by the Officer subordinate to him would be unauthorised. 165 of the Cri. Pro. Code. If he did not do so the search conducted by the Officer subordinate to him would be unauthorised. This is not a case of applying the presumption which is mentioned in section 114 of the Evidence Act. Illustration (e) of sec. 114 Evidence Act says that the Court may presume that judicial and official acts have been regularly performed. Sec. 114 of the Evidence Act deals with presumptions of fact which need not necessarily be always drawn. Moreover it refers to the presumption that official acts have been regularly done. There is no presumption that an official act had been performed or that this performance was done with due authority. Once due authority to perform the act and the performance of the act is proved it may be presumed that there was nothing irregular in the manner of performance. Sec. 114 and Illustration (e) of the same section do not therefore assist the prosecution case where there is no evidence to show that there was an order in writing as contemplated in sub-section (3) of section 165 Criminal Procedure Code. As there is nothing to show in the instant case that the search was made by an officer who had power to do so we cannot place any reliance on the evidence that a particular article was found in the search. In the case of searches conducted under the provisions of section 165 Criminal Procedure Code as provided in that section the provisions of the Code as to search warrants and the general provisions as to searches in sections 102 and 103 shall so far as may be apply to a search made under sec. 165 Cri. Pro. Code. Under sec. 103 Cri. Pro. Code it is obligatory on the officer making a search to make it in the presence of two or more respectable inhabitants of the locality in which the place to be searched is situate Panch Somabhai (P. W. 13) has deposed that the two Panchas were kept outside the house and two policemen went inside and made a search. The prosecution also examined the second Panch Abdulshakur Ajimbhai (P. W. 14 ). According to this witness the police searched a Datarda and at that time the witness was behind the police at a distance of 2 to 3 steps. The other Panch Somabhai was also outside. The prosecution also examined the second Panch Abdulshakur Ajimbhai (P. W. 14 ). According to this witness the police searched a Datarda and at that time the witness was behind the police at a distance of 2 to 3 steps. The other Panch Somabhai was also outside. It is not clear from the evidence of these two Panchas whether the search was made in the presence of the Panchas. Atmaram however says that he went to the house of the accused with the Panchas and on a search a Datarda was found under a cot in the house of the accused. But in view of the evidence of the other two Panchas it is impossible to hold that the search was made in the presence of the Panchas. As stated above it is also not proved that the search made by head constable Atmaram was in pursuance of an order in writing as provided by sub-section (3) of sec. 165 Cri. Pro. Code. We therefore hold that the search is not a valid one and therefore no importance can be attached to the alleged find of a Datarda in the house of the accused. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 3 ) WE therefore allow the appeal set aside the convictions and sentences passed upon the appellant and order that he should be set at liberty forthwith in this case. Appeal allowed. .