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Himachal Pradesh High Court · body

2018 DIGILAW 676 (HP)

Kubja Devi v. State of H. P.

2018-04-18

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment and decree pronounced by the learned First Appellate Court, whereby, the verdict rendered by the learned trial Court, whereupon, plaintiffs' suit was decreed, was hence reversed. 2. Briefly stated the facts of the case are that on the intervening night on 13/14.10.1991, there was incident of house breaking in Cemetary area of Sanjauli and locks of the rooms of Rajinder Singh, Surat Singh Chauhan, Ajeet Kumar Negi were found broken and household articles were lying scattered. The house breaking was also reported in the house of Shri Bhagat Ram, Raj Niwas, C.L. Kashyap etc. The matter was reported by Shri O.P. Sharm, Advocate to the police station, Dhalli and FIR No.354/91 came to be registered thereat. Police swung into action and dog squad was also put into service but without any result. In the meantime, Shri Bhagat Ram also reported the theft in his house and his statement was also recorded by the police. On information being furnished to the Police, IO suspecting stolen articles to be concealed nearby Kashyap Niwas, Cemetary Road, Shimla, IO Madan Lal on 26.10.1991, searched the house of Smt. Kubja Devi, Sheela and Bindi Devi, but nothing was found. Feeling aggrieved by such search, Smt. Kubja, Sheela and Bindi protested against the action of Police and also made complaints to the Police Department and the Dy. Commissioner, Shimla. They preferred a civil suit alleging that search was conducted maliciously and illegally and without any warrant. While doing so, Madan Lal, the Investigating Officer and Shri Bhagat Ram damaged the various articles and threw them away. A sum of Rs.4000/- was also lost, amount whereof belong to Bindi Devi. Which such search, their reputation stood lowered in the estimation of the relations and others. They claimed Rs.75000/- as damages from the defendants. 3. The defendants contested the suit and filed separate written statements. In the written statement filed by defendants No.1 and 3, they claimed and asserted that since there was theft in the area, in the house of the various persons including Shri Bhagat Ram, police swung into action pursuant to FIR. Proper procedure was followed and Investigating Officer had complied with Sections 100 and 165 of the Cr.P.C. The search was in accordance with law and no damage whatsoever was caused. The suit is alleged to be false. Proper procedure was followed and Investigating Officer had complied with Sections 100 and 165 of the Cr.P.C. The search was in accordance with law and no damage whatsoever was caused. The suit is alleged to be false. No legal and valid notice under Section 80 CPC was served upon defendants No.1 to 3. 4. Defendant No.4 in his written statement claimed that since there were thefts in the area and his house was also burgled, incident was reported to the police and the police investigated the crime. Police complied with the law and conducted search accordingly. No damage was ever caused to any of the plaintiffs. Consent memos were prepared in presence of the plaintiffs and the witnesses. No objection was ever raised by the plaintiffs. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled to suit amount by way of damages, as claimed? OPP. 2. Whether the suit is not maintainable? OPD. 3. Whether the suit is not properly verified? OPD. 4. Whether the suit is bad for non-disclosure of specific suffering, particular etc.? OPD. 5. Whether no legal and valid notice has been issued under Section 80 CPC? OPD. 6. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by the defendants/respondents herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. Now the plaintiffs/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 25.04.2007, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether there has been misreading of evidence by the learned first appellate court who has not recorded legal and valid reasons for reversing the judgment? 2. Whether the lower appellate court has wrongly observed that there has been compliance of Sections 100 and Section 165 of the Code of Criminal Procedure? 3. Whether there has been misreading of evidence by the learned first appellate court who has not recorded legal and valid reasons for reversing the judgment? 2. Whether the lower appellate court has wrongly observed that there has been compliance of Sections 100 and Section 165 of the Code of Criminal Procedure? 3. Whether adverse inferences were required to be drawn against the defendants on failure to produce the record of the House Search as made in violation of the mandatory provisions of Sections 100 and 165, Cr.P.C.? 8. In their suit, the plaintiffs espoused, rendition of a decree, for damages, arising, from commission, of, tort of trespass, by the defendants. It is not disputed inter se the parties at contest, that the defendants concerned, had entered the house of the plaintiffs, and, had also searched their respective abodes. The aforesaid entry, made, by the defendants concerned vis-a-vis the houses of the plaintiffs, for theirs holding searches thereof, evidently occurred on 26.10.1991. The search of the houses of the plaintiffs, was made by the defendants concerned, (i) given a suspicion being aroused of theirs concealing therein stolen property, in respect of theft, whereof FIR No. 354/91 was lodged, on 14.10.1991, with Police Station, Dhalli. In the aforesaid FIR, there occurs no narration of the plaintiffs being suspected by informant thereof, to within their respective abodes, hence, hold any articles of theft. However, during the course of Investigations being carried by the Investigating Officer concerned, vis-a-vis the aforesaid FIR, lodged with Police Station, Dhalli, by one O.P. Sharma, defendant Bhagat Ram, is contended in the written statement, to, in contemporaneity thereto record his statement under Section 161 of the Cr.P.C., with, disclosures therein, of cash worth Rs. 10,000/-, and, jewelery worth Rs.10,000/-, being stolen from his house. The aforesaid statement made by Bhagat Ram, defendant No.4, during, the course of investigations, being held by the Investigating Officer concerned, upon the aforesaid FIR, lodged by Mr. O.P. Sharma, is also testified to be made, on 14.10.1991. Apparently, searches made by the defendants concerned, of the houses of the plaintiffs, occurred much subsequently therefrom, inasmuch as on 26.10.1991. The defendants concerned, do not, contest the factum, of, at the relevant time, theirs not holding the statutorily required search warrants, for, hence enabling them to make valid searches, of the houses of the plaintiffs. Apparently, searches made by the defendants concerned, of the houses of the plaintiffs, occurred much subsequently therefrom, inasmuch as on 26.10.1991. The defendants concerned, do not, contest the factum, of, at the relevant time, theirs not holding the statutorily required search warrants, for, hence enabling them to make valid searches, of the houses of the plaintiffs. The contention raised by the defendants concerned, to omit to obtain search warrants from the Magistrate concerned, for, hence facilitating them to hold, valid searches, of the houses of the plaintiffs, is, embodied in the defendant Bhagat Ram, as testified by DW-2, rather only on 26.10.1991, hence, making a report with the police station, in respect of jewelery worth Rs.10,000/-, and, cash worth Rs.10000/-, being stolen, from, his house, (a) and, with searches being made on the very same day, the defendants rather hence contend that per se thereupon with good, valid and tangible reasons, being prevalent thereat, qua omissions, to, prior thereto, rather obtain, the statutorily mandated search warrants, hence, want(s) thereof, not rendering invalidated the searches of the houses of the plaintiffs. For ascertaining the worth of the aforesaid espousals, an allusion to the apposite provisions, borne, in Section 94, and in Section 100 of the Cr.P.C. is imperative, provisions whereof are extracted hereinafter:- “Section 94 – Search of place suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable- 1. to enter, with such assistance as may be required, such place, 2. to search the same in the manner specified in the warrant, 3. to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, 4. to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safely, 5. to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safely, 5. to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. 2. The objectionable articles to which this section applies are- 1. counterfeit coin; 2. pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962); 3. counterfeit currency note; counterfeit stamps; 4. forged documents; 5. false seals; 6. obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860); 7. instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f). 100. Persons in charge of closed place to allow search. (1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub- section (2) of section 47. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) 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. (6) 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. (7) When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (7) When any person is searched under sub- section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) 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 of the Indian Penal Code (45 of 1860 ).” wherein contrarily, a loud, candid, and, forthright expostulations, are, embodied (b) vis-a-vis the peremptoriness, of the search party/raiding party, hence obtaining the relevant search warrants, from, the Magistrate concerned, for hence validating the apposite searches, (c) thereupon, for evident non possession, by the raiding party, of the, apposite statutorily enjoined search warrants, hence renders the apt searches, to suffer from a vice of, invalidation, dehors, any good or tangible reason being purportedly purveyed, for omissions, of, the raiding party, to prior thereto not obtain the requisite search warrants, from the Magistrate concerned. 9. Be that as it may, even if assuminglly, the espousal made by the defendants concerned, does hold any tenacity, yet for gauging its vigour, it is imperative to discern (a) whether any intimation by defendant Bhagat Ram, was, made vis-a-vis the officials of Police Station, Dhalli, on 26.10.1991 or as testified by DW-2, on 14.10.1991; (b) whether the testification in conflict thereto, occurring, in the subsequent thereto testification, of DW-2, of defendant Bhagat Ram, making an intimation, to the officials concerned, of the Police Station Dhalli, only on 26.10.1991, rather enjoying creditworthiness; (c) given an entry at zimni No.4, being made on 26.10.1991, by DW-2, (d) and preeminently, when in the last part, of, the cross-examination of DW-2, he rendered a version, conflicting, with the earlier therewith version, rendered by him, wherein, he echoes, of, the apposite intimation, being purveyed, on 14.10.1991, to the police officials, of Police Station, Dhalli, (e) thereupon when earlier therewith, DW-2, apparently hence makes a communication, in his examination-in-chief, of Bhagat Ram, making, a communication to him, through, a statement, recorded on 14.10.1991, under Section 161, Cr.P.C., (e) and, whereas, in departure therefrom, DW-2 subsequently in his testification, hence, contradictorily deposes, of his, being purveyed an intimation by Bhagat Ram, only on 26.10.1991, hence, he belies the latter part of his testification. Naturally, any conclusion with respect to the exact time, of an intimation, being made, by one Bhagat Ram, to the Police Station, Dhalli, would have a necessary concomitant telling effect, upon the necessity, of the immediacy of any purportedly valid searches, being made, on 26.10.1991, by the searching party vis-a-vis the houses, of the plaintiffs, dehors no search warrant being thereat held, by the searching party. 10. In making any conclusion with respect, to, the exact time, when an intimation, was, purveyed by DW-2 Bhagat Ram, to Police Station, Dhalli, a wholesome reading of the statement of DW-2, would be, of immense aid. Reiteretedly, in the opening part of his examination-in-chief, DW-2 deposes, of, during the course of his holding investigations, upon FIR No.354/91, lodged by one O.P. Sharma, defendant Bhagat Ram, only, on 14.10.1991, rather making a statement under Section 161 of the Cr.P.C., with echoing(s) therein, of theft of cash worth Rs.10,000/-, and, of jewelery worth Rs.10,000/-, standing committed from his house, yet he does not maintain the aforesaid testification, in the apt latter part, (i) wherein he in departure therefrom, rendered a version, of Bhagat Ram only on 26.10.1991, hence recording his statement under Section 161 Cr.P.C., (ii) and, also makes a deposition, in corroboration thereto by echoing, qua on 26.10.1991, his recording, an apposite echoing in the relevant gimini. The waverings, ditherings, and, inconsistent testification(s), occurring, in various parts of the testification of DW-2, hence bolsters an inference, (a) of DW-2 in making departures, from the earlier part(s) of his testification, wherein, he renders an articulation, of, the apposite intimation being made on 14.10.1991, to him, by one Bhagat Ram, has hence thereupon rendered himself to be construable, to be contriving all the subsequent thereto rendered testification. (b) Even though, he has made an entry in the apposite gimini, of an intimation being purveyed to him, on 26.10.1991, yet impact thereof, would hold a grave, and, solemn aura of sanctity, if, had also tendered into evidence, the statement recorded by him, under Section 161, of the Cr.P.C., of one Bhagat Ram, with clear delineations therein of the aforesaid Bhagat Ram, making, the statement before him, only, on 26.10.1991, (c) whereupon, may be his echoing in his testification, occurring in the opening part of his examination-in-chief, of, the aforesaid statement being made on 14.10.1991, may be construable, to be hence made off the record, hence discardable. However, the aforesaid statement recorded by DW-2, of defendant Bhagat Ram, under Section 161 of the Cr.P.C., remained unadduced into evidence, (d) whereupon, it is to be concluded, that the opening part of the examination-in-chief of DW-2, wherein, he renders a testification, of his recording the statement of Bhagat Ram, under Section 161 of the Cr.P.C., only, on 14.10.1991, being amenable for imputation of credence thereto, (e) and, his testification in departure therefrom, occurring, in the latter part(s) of his examination-in-chief, rather enjoying no probative vigour. Consequently it its to be concluded, that, despite the defendants concerned being purveyed, the apposite intimation, on 14.10.1991, by Bhagat Ram, and, with the searches being made of the houses of the plaintiffs, much belatedly therefrom, on 26.10.1991, (f) thereupon, when despite availability, of, immense time, vis-a-vis the searching party, to obtain the statutorily peremptorily enjoined search warrants, from, the Magistrate concerned, (g) yet with no search warrants being admittedly obtained by the searching officials, thereupon, the reasons as assigned, and, as testified by the defendants, for, hence denuding the rigor of the substantive part, of Section 100 Cr.P.C., and, of Section 94 of the Cr.P.C., cannot be construed to be holding any force, nor statutory vigour(s) thereof stand eroded, (h) more so when the mandate(s) thereof enjoin, no dilution in any manner or for any purported reason. In sequel, it has to be held that the search, if any, carried by the searching party of the houses of the plaintiffs, being an invalid search, besides concomitantly, (i) hence, when defendant Bhagat Ram, in his examination-in-chief, also makes, a disclosure of his never making any intimation, to the police officials concerned, of his suspecting the plaintiffs, to, in their respective abodes, (j) hence hold any stolen property(ies), thereupon, there evidently being no reasonable ground, for the searching party, to, hence believe, on any count, of theirs holding any legal leverage vis-a-vis the defendants concerned, hence, in their respective abodes, holding the stolen property, (k) whereupon, it is to be concluded, that, with an invalid search being held of the houses of the plaintiffs, and, with its hence carrying a concomitant sequel, of, their reputation, and, estimation in society, rather suffering immense diminution, (l) hence, the learned trial Court has made, apt conclusions, on appropriate appraisal of the evidence on record, of the suit of the plaintiffs warranting its being decreed, whereas, the learned trial Court, has inaptly reversed the findings recorded by the learned trial Court. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court being not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Substantial questions of law No.1 to 3 are answered in favour of the appellants and against the respondents. 12. In view of above discussion, the instant appeal is allowed and in sequel the judgment and decree rendered by the learned first appellate Court is set aside. Consequently, the judgment and decree rendered by the learned trial Court in Case No. No. 264/1 of 95/92 is affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.