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1970 DIGILAW 359 (ALL)

Harikishan alias Totey v. State

1970-09-10

G.C.MATHUR, HARI SWARUP

body1970
JUDGMENT G.C. Mathur, J. - This criminal revision has been referred to this Bench for decision at the instance of Gupta, J. The question, which arises for determination in this case, is whether the conviction of the Applicant u/s 25(1)(a) of the Arms Act, 1959 is vitiated on account of the fact that the search as a result of which the unlicensed arms were recovered, was not conducted, in accordance with the provisions of Section 165 Code of Criminal Procedure. Before Gupta, J., a decision of D.D. Seth, J. in Prayag Singh v. State Cr. Rev. No. 1961 of 1967 D/- May 22, 1968 reported in 1968 ACR 295 : 1968 AWR 454 , was cited but, finding himself unable to agree with this decision, he made this reference. 2. In Prayag Singh's case, the accused was a member of a P.A.C. Battalion. On a search of his barracks by the Company Commander, the Platoon Commander and a Head Constable, 55 rounds of live cartridges of 303 Bore Rifle and 8 chargerclips were recovered from his box. At the trial, the recovery of the cartridges and chargerclips was proved by the statements of the persons who conducted the search. The accused was convicted u/s 25(1)(a) of the Arms Act by a magistrate and the conviction was upheld in appeal. In revision D.D. Seth, J. came to the conclusion that the Company Commander was not an officer authorised to make a search by Section 165 Code of Criminal Procedure and observed: It must therefore,, be held that Sri Sita Ram, the Company Commander, who carried out the search of the belongings of the Applicant, was not authorised by law to carry out that search and that being the position, the conviction of the Applicant u/s 25(a), Arms Act, was illegal. He was apparently of the view that, if the search was not made in accordance with the provisions of Section 165 Code of Criminal Procedure, the conviction could not stand. 3. It is now well settled that any irregularity or illegality in the investigation of a case does not, by itself, vitiate the trial or the conviction. In Niranjan Singh Vs. 3. It is now well settled that any irregularity or illegality in the investigation of a case does not, by itself, vitiate the trial or the conviction. In Niranjan Singh Vs. The State of Uttar Pradesh, AIR 1957 SC 142 , the Supreme Court has observed: The Code of Criminal Procedure in laying down the omissions or irregularities which either vitiate the proceedings pr not does not anywhere specifically say that a mistake committed by a police officer during the course of the investigation can be said to be an illegality or irregularity. Investigation is certainly not an inquiry or trial before the court and the fact that there is no specific provision either way in Ch. XLV with respect to omissions or mistakes committed during the course of investigation; except with regard to the holding of an inquest is, in our opinion, a sufficient indication that the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. In this case, the Supreme Court approved the following observation of Adami, J. in Hafiz Mohamad Sani and Others Vs. Emperor, AIR 1931 Patna 150 : There can be no doubt that the Sub-Inspector in his procedure disobeyed certain provisions of the law and for that he could be punished, if the authorities deemed it fit, but I cannot find that his failure was to the prejudice of the Petitioners. Nor can I see how failure properly to conduct an investigation into an offence can vitiate a trial which was started on the final report after the investigation. 4. The question whether any irregularity or illegality in the search vitiates the trial or the conviction has arisen before this Court in several cases. In Syed Ahmad v. King Emperor (1913) 11 ALJ 933 which was a case u/s 60 of the Excise Act, 1896, the search, in which cocaine was recovered from the possession of the accused, was conducted by an Excise Inspector without a warrant. Section 63 of that Act requires an Excise Inspector to obtain a search warrant before making the search of a house. Section 63 of that Act requires an Excise Inspector to obtain a search warrant before making the search of a house. Ryves, J. held that whether the search was legal or not, the conviction of the accused depended not on the legality of the search but on the fact that cocaine was found illegally in his possession and that the absence of a search warrant did not affect the legality of the trial. 5. In Emperor Vs. Kutroo, AIR 1925 All 434 , a search of the house of the accused was conducted by a Patwari entitled to exercise the powers of a police officer and gun powder, some dynamite and a detonator and fuse were found. The accused was convicted u/s 19(f), Arms Act, 1878, but, on appeal, his conviction was set aside on the ground that the search was illegal. The Government preferred an appeal to this Court and a Division Bench consisting of Walsh and Boys, JJ., upheld the conviction, even though it held that the search was illegal. Walsh, J., observed: 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 person cannot be convicted even though the evidence against him is conclusive. This is not the law. The point is covered by authority, particular in this Court in the case of Emperor v. Syed Ahmad 11 ALJ 933, 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. This decision was followed by another Division Bench of this Court consisting of Banerji and Bannet, JJ. in Harish Chandra and Others Vs. Mt. Kastola Kunwar and Others, AIR 1925 All 68 which was also a case u/s 19(f), Arms Act. The Bench observed: Whether the search was legal or illegal, we are of opinion that arms having been found in the possession of the accused, no question of the legality of the search or otherwise can be raised by him: See Emperor Vs. Kutroo, AIR 1925 All 434 . 6. The Bench observed: Whether the search was legal or illegal, we are of opinion that arms having been found in the possession of the accused, no question of the legality of the search or otherwise can be raised by him: See Emperor Vs. Kutroo, AIR 1925 All 434 . 6. With respect, we agree with the view taken in these; cases. The conviction for an offence u/s 25(1)(a), Arms Act, 1959, depends upon proof of the fact that the accused was in possession of unlicensed arms. The evidence in support of this fact, even if it was discovered as a result of a search not made in accordance with the provisions of Section 165 Code of Criminal Procedure, is not inadmissible. The prosecution cannot be precluded from producing such evidence before the court and a conviction can lawfully be founded upon it. It is desirable that searches, to which Section 165 Code of Criminal Procedure is applicable, should, as far as possible, be made strictly in accordance with the provisions of his section. But there may be cases where compliance with such provisions may entail some delay and the delay may frustrate the very object of the search. If the provisions are contravened without proper justification, the search and the recovery may be viewed with suspicion. Therefore, the only effect of irregularity or illegality in the Search, is to affect the probative value of the evidence of the persons conducting the search relating to the possession and recovery of the unlicensed arms. 7. Other High Courts have also taken the same view. In Ramrao Ekoba v. The Crown AIR 1951 Nag. 237, Hemeon, J. held: Although the failure to comply with the provisions regulating searches may cast doubts the bonafides of the officers conducting the search, there is nothing in law which makes evidence relating to an irregular search inadmissible and a conviction based on such evidence is not in--valid on that ground alone. In Indu Bhusan Chatterjee Vs. The State, AIR 1955 Cal 129 , a Division Bench of the Calcutta High Court held: There is authority for the proposition that a failure to observe the provisions relating to search does not make the evidence relating to the search inadmissible. In State Vs. Raoji Kaloji Kadam, AIR 1956 Bom 528 , a Division Bench of the Bombay High Court consisting of Gajendragadkar and Gokhle, JJ. In State Vs. Raoji Kaloji Kadam, AIR 1956 Bom 528 , a Division Bench of the Bombay High Court consisting of Gajendragadkar and Gokhle, JJ. held: But we do not see how from the bare circumstance that the search was illegal it follows that the case against the Respondent had not been proved. However much we would like to discourage over-enthusiastic citizens from carrying out illegal searches of this kind, when the matter is brought before the Court, the Court must scrutinize the evidence and find out whether the offence is proved or not. In dealing with evidence of a search which is illegal, the Court would have to examine the evidence very carefully, eliminate the possibility that the search may have been the result of private malice and then decide whether the search and the evidence relating to the discovery of incriminating material has been proved beyond a reasonable doubt. In our opinion, it would be going too far to hold that only because the search is illegal, the accused must be acquitted. The same view has been taken by a Full Bench of the Kerala High Court in Kochan Velayudhan Vs. State of Kerala, AIR 1961 Ker 8 : 8. The matter is concluded by the following observations of the Supreme Court in Radha Kishan v. State of U.P. 1963 AWR 304 SC: So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal, the seizure of the articles is not vitiated. It may be that where the, provisions of Sections 103 and 165, Code of Criminal Procedure, are contravened, the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues. The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would not re-examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court. The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would not re-examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court. The correct legal position is that, even if the search is illegal inasmuch as it was not made in accordance with the provisions of Section 165 Code of Criminal Procedure or Section 103 Code of Criminal Procedure, the evidence discovered by the search does not thereby become inadmissible, nor does the conviction based on such evidence become illegal. It may only be reasonable to view with more than ordinary caution the evidence of those who made the illegal search. In this view, it appears, that the case of Ptayag Singh v. State (supra) was not correctly decided. 9. Let the case be listed for disposal before Gupta, J. at an early date.