In the case reported as State v. Rehman (AIR
1960 SC 210) it is laid down by the Apex Court that as
search is a process exceedingly arbitrary in character,
stringent statutory conditions are imposed on the exercise
of the power. The provision of section 165 of the Cr.P.C. is
enacted to enable police to take search when there is
urgency and when it is not permissible to follow lengthy
process, securing search warrant from Magistrate. In the
case of Rehman (cited supra) the Apex Court has laid
down that as the provision of section 165(1) of the Cr.P.C.
is mandatory in nature, it should be strictly followed.
Thus, before entering a house, investigating officer has to
specify in writing the things for which search is to be
made and also the ground of his belief that such things
would be found in the house which is to be searched. In
view of the wording of the provision it can be said that
the provision is not restricted to search of what is stolen
or believed to be stolen and it permits the police officer to
make search for anything necessary for the purposes of
investigation into any offence. Thus, on one hand the
provision enables police to take search of the house for
investigation of any crime, on the other, it becomes
mandatory for police to record reasons as the first step
before entering the house.
16) Sub section (2) of section 165 of the Cr.P.C.
shows that police officer taking action should be either
police officer in charge of the police station or the
investigating officer. It can be said that in cases of
urgency, the investigating officer may depute his
subordinate but in view of the provision of section 165(1)
of the Cr.P.C. such deputation must be in writing. That is
also made clear in section 165(3) of the Cr.P.C.
17) The provision of section 165 of the Cr.P.C.
shows that it applies to searches when offence is
committed under general Act like Indian Penal Code, or
special Acts or also local Acts provided that the conditions
given in section 165 of the Cr.P.C. are satisfied. This Court
has gone through the provisions of the Arms Act 1959 as
the respondents have come with the defence that there
was specific secret information against the petitioner that
he was in possession of firearm illegally. There is nothing
in the Arms Act and the Rules framed under that Act to
enable police to take such search by ignoring the
provision of section 165 of the Cr.P.C. This Court has also
gone through the provisions of the Maharashtra Police Act
to ascertain the powers of police officer and this Act also
does not show that police can bypass the provision of
section 165 of the Cr.P.C.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.25 of 2019
Dnyaneshwar s/o Kachru Todmal, Vs The State of Maharashtra,
Coram: T.V. NALAWADE &
S.M. GAVHANE, JJ.
Judgment pronounced on : 29 November, 2019
JUDGMENT (Per T.V. Nalawade, J.):
1) Rule. Rule made returnable forthwith. Heard
both the sides by consent for fnal disposal.
2) The present proceeding is fled for declaration
that the act of the respondents, police oficers, of taking
search of the house of the petitioner on the night between
5-5-2018 and 6-5-2018 was illegal and that was
interference in the privacy of the petitioner and his family.
Relief is claimed of compensation of Rs.10 lakh for
infringement of fundamental right, right of privacy.
Direction is also sought to prosecute the police officers
involved in the house search for offence of trespass and
other offences.
3) The incident in question took place on the night
between 5-5-2018 and 6-5-2018 at about 2.00 a.m. The
search of the house of the petitioner was taken by Newasa
Police, District Ahmednagar. According to the petitioner,
police had not obtained search warrant for taking such
search and ultimately nothing objectionable was
recovered from his house. It is contended that during
search, one Constable by name Vitthal Gaikwad had tried
to plant a country made pistol in his house but due to
alertness of the petitioner he could not plant such arm. It
is the contention of the petitioner that while leaving the
house threats were given by the police to him that they
would implicate him in a false crime. It is contended that
this act of the police was infringement into his privacy,
violation of his fundamental rights guaranteed under
Article 21 of the Constitution of India.
4) It is the contention of the petitioner that on 7-5-
2018 he gave complaint to the concerned Tahsildar about
the aforesaid illegal act of police but no action was taken.
It is contended that he gave complaint to the District
Superintendent of Police on 10-5-2018 and copy of the
complaint was sent to State Human Rights Commission
but no action is taken against the respondents. He had
approached this Court by fling Writ Petition No. 841 of
2018. In that proceeding a letter of the District
Superintendent of Police Ahmednagar was shown to the
Court and it was to the efect that the Sub Divisional
Police Oficer was appointed to make inquiry. In view of
the steps taken by the superior police oficers, Writ
Petition No.841of 2018 was disposed of by this Court.
5) It is the contention of the petitioner that in the
aforesaid inquiry it revealed that the search of the house
of the petitioner was taken but there was no search
warrant. It is his contention that though illegality was
noticed, the Sub Divisional Police Oficer did not propose
action against the police oficers involved in the illegal
search. It is his contention that the police oficers involved
in the house search could not have come together as they
were posted at diferent places for discharge of their
routine duties and everything in the action was illegal. It
is the contention of the petitioner that there is nothing
with the respondents to show that they had received any
information against the petitioner on that night or prior
to that night and the action taken had no basis. A copy of
the report prepared by the Superintendent of Police is
produced on the record and other documents like copy of
representation are also produced and the aforesaid reliefs
are claimed.
6) The Superintendent of Police Ahmednagar has
fled reply afidavit. He has contended that from the year
2014 onwards as many as 16 crimes were registered
against other persons of that area as they were found in
possession of fre arms. He has contended that due to
such circumstance there was a probability that persons of
that local area were having fre arms and they were
involved in illegal activities and so action was taken by
police which was on the basis of secret information.
7) It is the contention of District Superintendent
of Police that, present petitioner is driver by occupation
and against him some crimes were registered prior to the
date of action though under sections 304-A and 279 of the
Indian Penal Code between years 2011 and 2015. It is
contended that it cannot be said that the petitioner had no
criminal background. It is contended that the action was
taken in good faith by police. Along with reply, a list of 30
crimes registered from years 2011 to 2018 under Arms
Act against many persons is given and list of separate 16
crimes is given to show that accused from these cases
were involved frst time in such crimes.
8) Respondent No.5 – Police Inspector who was
involved in the search and who was senior most police
oficer of the team has fled reply afidavit. He has
contended that there was secret information against the
petitioner so search was taken. Other contentions made
by the Police Inspector are similar to the contentions
made by the District Superintendent of Police. The Police
Sub Inspector who was involved in the search has also
fled similar reply. One Head Constable, respondent No.4,
has also fled similar reply.
9) With the inquiry report prepared by the Sub
Divisional Police Oficer there are statements of police
oficers who were involved in the search. There are
statements of the panch witnesses also. The record and
the report are to the efect that after the search the
petitioner had given threats that he would approach
higher authority and also the court for taking such search
and he had said that he would also approach the political
leader Shri. Prashant Gadakh. It appears that the
petitioner is a follower of the aforesaid leader.
10) More record came to be produced by the
respondents during pendency of the present proceeding.
Copy of complaint dated 10-10-2019 given by one Baba
@ Bhausaheb Maruti Kangune is produced. He has made
allegation against the petitioner that the petitioner had
supplied false information against him that he had illegally
stored liquor in his feld. In the complaint he has
contended that the petitioner is a follower of a big
political leader and so police are not taking action against
him. Copy of the complaint given by one Mohan Todmal
dated 2-4-2019 is produced by the respondents. The
petitioner is cousin bother of Mohan Todmal. Mohan
Todmal has made allegation that on 31-3-2019 he had
given complaint to the concerned police station that the
petitioner had given threats to him by showing revolver
but no action was taken against the petitioner by police.
He has also contended that the petitioner has support of
political leader Shri. Prashant Gadakh. Allegations are
made that the petitioner is doing money lending business
illegally.
11) In view of nature of the allegations and the
aforesaid circumstances the record of year 2019 which is
produced by the respondents cannot be considered. It is
not the case of the respondents that further action was
taken against the petitioner on the basis of the aforesaid
two complaints. It is unfortunate that such complaints are
collected subsequent to the date of fling of the present
proceeding and they are produced to show that against
the petitioner there are some complaints.
12) The learned counsel for the petitioner has
placed reliance on a decision given by this Court in
Criminal Writ Petition No.823/2018 (Pushpa Santosh @
Ishwar Pimple v. The State of Maharashtra & Others).
Direction was given by this Court in that writ petition on
10-6-2019 to register crime against the police of Newasa
Police Station, the police station to which some of the
present respondents were attached at the relevant time.
Direction was given in respect of death which had taken
place in the custody of police on 23-8-2017. This
circumstance cannot be considered and this circumstance
cannot lead to presumption that police of this police
station always indulged in such activities and there was
excessive use of power by them in general.
13) The learned counsel for the petitioner mainly
submitted that police ought to have obtained search
warrant frst for taking search of the house of the
petitioner and as such warrant was not obtained, the
house search was illegal. He took this Court through the
provisions of Chapter VIII and some provisions of Chapter
V of the Code of Criminal Procedure. Those provisions are
altogether different and the purpose behind those
provisions is different The specifc purposes for which the
search can be taken under search warrant are given in
provisions of sections 93 to 95 of the Cr.P.C. In the present
matter it is specifc case of the respondents that, on the
basis of some secret information that the petitioner was in
possession of firearm illegally, the search was taken.
There are not only the aforesaid provisions enabling the
police officer to take search of the house but there are
other provisions like provisions of sections 165 and 166 of
the Cr.P.C. Provision of section 165 of the Cr.P.C. runs as
under.
“165. Search by police oficer.-- (1) Whenever an
oficer in charge of a police station or a police oficer
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 oficer 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 oficer
subordinate to him to make the search, and he shall
deliver to such subordinate oficer 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 oficer 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 contained in
section 100 shall, so far as may be, apply to a search
made under this section.
(5) Copies of any record made under sub-section (1)
or sub-section (3) shall forthwith be sent to the nearest
Magistrate empowered to take cognizance of the
ofence, and the owner or occupier of the place
searched shall, on application, be furnished, free of cost,
with a copy of the same by the Magistrate.”
14) The provision of section 166 of the Cr.P.C.
shows that police officer in charge of a police station may
require another to issue search-warrant when a place to
be searched is situated within local jurisdiction of the
other police station. This Court holds that provisions of
sections 165 and 166 of the Cr.P.C. are applicable in a case
like present one. Provision of section 165 of the Cr.P.C. has
following four ingredients :--
(i) The police officer must have reasonable ground for
believing that anything necessary for the purpose of an
investigation of an offence cannot, in his opinion, be
obtained otherwise than by making a search, without
undue delay;
(ii) he should record in writing the grounds of his
belief and specify in such writing as far as possible the
things for which search is to be made;
(iii) he must conduct the search, if practicable, in
person; and
(iv) if it is not practicable to make the search himself,
he must record in writing the reasons for not himself
making the search and shall authorise a subordinate
officer to make the search after specifying in writing the
place to be searched, and, so far as possible, the thing
for which search is to be made.”
15) In the case reported as State v. Rehman (AIR
1960 SC 210) it is laid down by the Apex Court that as
search is a process exceedingly arbitrary in character,
stringent statutory conditions are imposed on the exercise
of the power. The provision of section 165 of the Cr.P.C. is
enacted to enable police to take search when there is
urgency and when it is not permissible to follow lengthy
process, securing search warrant from Magistrate. In the
case of Rehman (cited supra) the Apex Court has laid
down that as the provision of section 165(1) of the Cr.P.C.
is mandatory in nature, it should be strictly followed.
Thus, before entering a house, investigating officer has to
specify in writing the things for which search is to be
made and also the ground of his belief that such things
would be found in the house which is to be searched. In
view of the wording of the provision it can be said that
the provision is not restricted to search of what is stolen
or believed to be stolen and it permits the police officer to
make search for anything necessary for the purposes of
investigation into any offence. Thus, on one hand the
provision enables police to take search of the house for
investigation of any crime, on the other, it becomes
mandatory for police to record reasons as the first step
before entering the house.
16) Sub section (2) of section 165 of the Cr.P.C.
shows that police officer taking action should be either
police officer in charge of the police station or the
investigating officer. It can be said that in cases of
urgency, the investigating officer may depute his
subordinate but in view of the provision of section 165(1)
of the Cr.P.C. such deputation must be in writing. That is
also made clear in section 165(3) of the Cr.P.C.
17) The provision of section 165 of the Cr.P.C.
shows that it applies to searches when offence is
committed under general Act like Indian Penal Code, or
special Acts or also local Acts provided that the conditions
given in section 165 of the Cr.P.C. are satisfied. This Court
has gone through the provisions of the Arms Act 1959 as
the respondents have come with the defence that there
was specific secret information against the petitioner that
he was in possession of firearm illegally. There is nothing
in the Arms Act and the Rules framed under that Act to
enable police to take such search by ignoring the
provision of section 165 of the Cr.P.C. This Court has also
gone through the provisions of the Maharashtra Police Act
to ascertain the powers of police oficer and this Act also
does not show that police can bypass the provision of
section 165 of the Cr.P.C.
18) Learned counsel for the petitioner submitted
that taking house search illegally itself amounts to
infringement of privacy and such act is in breach of the
fundamental rights given under Article 21 of the
Constitution of India. In view of the aforesaid provision,
and as police officers entered the house that too in night
time when he was sleeping with his family which included
two ladies and the issues, this Court holds that it was
intrusion into privacy. If such act is done illegally without
following the procedure which is contemplated in Article
21 of the Constitution of India, the consequences follow. In
such a case, there cannot be defence that it was a mistake
on the part of the police officers. On this point, learned
counsel for the petitioner has placed reliance on the case
reported as AIR 2017 SC 4161 (Justice K.S. Puttaswamy v.
Union of India). Facts and circumstances of each and
every case are always different. It needs to be ascertained
in every case as to whether the action of the officers was
in breach of the fundamental rights given by provision like
Article 21 of the Constitution of India. If the Court comes
to conclusion that the action was not in accordance with
law, it was illegal the court is bound to give compensation.
19) In the present matter this Court had given
opportunity to the respondents to show that there was
secret information received by police on that night.
Though from the information, the informant's name need
not be disclosed, it is necessary for police to create a
record of the information received. Entry of such
information which involves commission of cognizable
offence needs to be made in station diary. When police
officers leave for action, they need to make an entry about
their movements in station diary. In the present matter the
record produced by the petitioner shows that most of the
respondents were assigned different duties at different
places on that night. All of them came together on that
night for this action but no writing is there in respect of
secret information and also about the compliance of
provision of section 165 of the Cr.P.C. It appears that
subsequent to taking the search some entry was made in
the station diary but such entry cannot be used to show
that there was compliance of provision of section 165 of
the Cr.P.C. This Court holds that the action of the police
oficers was illegal. This Court has no hesitation to hold
that the State is liable to pay compensation to the
petitioner for such illegal action. That action of police was
not only the infringement into privacy but that action
defamed the entire family. If in the past some crimes were
registered against the petitioner for offence of accidents
that cannot be considered to say that the petitioner had
criminal background when his occupation was driver.
Many times a driver faces such prosecution. So, the
defence of such nature taken by the respondents cannot
help them to show that they had reasonable ground to
take action against the petitioner. There is other
probability like involvement of the rivals of the aforesaid
political leader. Thus there is possibility of mala fdes also
in the present matter. Considering the status of the
petitioner this Court holds that the respondents need to
pay at least Rs.25,000/- as compensation to the petitioner.
Initially that amount needs to be paid by the State and it
will be open to the State to recover the amount from the
concerned police officers after fixing responsibly on them.
20) Granting of other reliefs like prosecuting the
police officers is not possible in the matter like present
one. Learned counsel for the petitioner drew attention of
this Court to the provision of section 147 of the
Maharashtra Police Act 1951 which is as under.
“147. Vexatious entry, search, arrest etc., by Police
Officer. Any Police Officer who –
(a) without lawful authority or reasonable cause enters
or searches, or causes to be entered or searched, any
building, vessel, tent or place;
(b) vexatiously and unnecessarily seizes the property of
any person;
(c) vexatiously and unnecessarily detains, searches or
arrests any person;
(d) offers any unnecessary personal violence to any
person in his custody, or
(e) holds out any threat or promise not warranted by
law,
shall for every such offence, on conviction, be
punished with imprisonment for a term which may
extend to six months or with fine which may extend to
five hundred rupees, or with both.”
In the present matter, the incident took place on the night
between 5-5-2018 and 6-5-2018. In view of the provision
of section 161 of the Maharashtra Police Act, action
under the aforesaid provision ought to have been taken
within six months. If the action is not taken within six
months in view of section 161 of Maharashtra Police Act,
the provision of section 197 of the Cr.P.C comes in play.
Provision of section 161 of the Maharashtra Police Act,
1951 reads as under :
“161. Suits or prosecutions in respect of acts
done under colour of duty as aforesaid not to be
entertained, or to be dismissed if not instituted
within the prescribed period.
(1) In any case of alleged offence by the Revenue
Commissioner, the Commissioner, a Magistrate, Police
Oficer or other person, or of a wrong alleged to have
been done by such Revenue Commissioner,
Commissioner, Magistrate, Police Officer or other
person, by any act done under colour or in excess of
any such duty or authority as aforesaid, or wherein it
shall appear to the Court that the offence or wrong if
committed or done was of the character aforesaid, the
prosecution or suit shall not be entertained, or shall be
dismissed, if instituted, more than six months after the
date of the act complained of:
Provided that, any such prosecution against a Police
officer may be entertained by the Court, if instituted
with the previous sanction of the State Government
within two years from the date of the offence.
In suits as aforesaid one month’s notice of suit to
be given with sufficient description of wrong
complained of.
(2 In the case of an intended suit on account of such
a wrong as aforesaid, the person intending to sue
shall be bound to give to the alleged wrong-doer one
month’s notice at least of the intended suit with
sufficient description of the wrong complained of,
failing which such suit shall be dismissed.
Plaint to set forth service of notice and tender of
amends.
(3) The plaint shall set forth that a notice as aforesaid
has been served on the defendant and the date of such
service, and shall state whether any, and if any, what
tender of amends has been made by the defendant. A
copy of the said notice shall be annexed to the plaint
endorsed or accompanied with a declaration by the
plaintif of the time and manner of service thereof.”
21) On the point of necessity of sanction under
section 197 of the Cr.P.C., learned counsel for the
petitioner has placed reliance on observations made in the
cases reported as (1) AIR 1973 SC 2591 (Pukhraj v. State
of Rajasthan); and, (2) 1970 Cri.L.J. 1401 (Bhagwan
Prasad Srivastava v. N.P. Mishra). The facts of these two
reported cases are different. In view of the facts of those
cases it was held that the acts were not done in purported
exercise of the duty. In the case of Bhagwan Prasad
Srivastava (cited supra), the Apex Court has made it clear
that there must be reasonable connection between the
“act” and the discharge of official “duty”. The act must fall
within the scope and range of official duty of the public
servant concerned. It is observed that it is not “duty”
which requires examination as much as “act” because the
official act can be performed both in the discharge of the
official duty as well as in dereliction of it. There cannot be
dispute over the propositions made in the two cases. In
the present matter this Court has referred the provisions
of sections 165 and 166 of the Cr.P.C. The house of the
petitioner is situated within local jurisdiction of the police
station of the respondents and it is their contention that
there was specific information about illegal possession of
firearm against the petitioner and so search was taken. In
view of the provisions of the Cr.P.C. quoted, it can be said
that search of the house premises was a part of oficial
duty. In the matter like present one there is no need to go
into other requirements of provision of section 165 of the
Cr.P.C. to ascertain as to whether the search was being
taken by Police Station Officer or the investigating oficer.
22) As the act was done while discharging of duty
the observations made by the Apex Court in the aforesaid
two cases cited by the learned counsel for the petitioner
cannot be used in the present matter.
23) On the other hand, learned Additional Public
Prosecutor has placed reliance on the observations made
by the Apex Court in the cases reported as (1) AIR 2006
SC 820 (Rakesh Kumar Mishra v. State of Bihar); and, (2)
AIR 2008 SC 1992 (Anjani Kumar v. State of Bihar). In
the first matter there was similar allegation like the
search of the house of the respondent of that matter.
Allegations were made that search was motivated and it
was for the purpose of humiliating and harassing him.
There was also contention that there was no search
warrant. Though search was without warrant the Apex
Court held that sanction for prosecution of such police
officer needs to be obtained under section 197 of the
Cr.P.C. In the second matter of Anjani Kumar similar
observations are made and it is observed that if there is
reasonable connection between the act and the discharge
of duty by public servant, the act would be ‘official’ to
which section 197 of the Cr.P.C. would be applicable. On
that count the proceeding fled against the public servant
was quashed. In view of this position of law, this Court
holds that for the prosecution there is necessity of
sanction under section 197 of the Cr.P.C. In view of the
facts of the present matter this Court holds that no further
action like direction for prosecution of the police officers
is warranted and giving of the compensation to the
petitioner would be sufficient. In the result, following
order :-
24) The petition is partly allowed. It is hereby
declared that the search was illegal. The respondents are
directed to pay compensation of Rs.25,000/- (Rupees
Twenty Five Thousand Only) to the petitioner. The amount
is to be deposited initially by the Government within 45
days of this decision. If the amount is not deposited within
45 days the amount shall carry interest at the rate of 8%
per annum. After deposit of the amount, the amount is to
be given to the petitioner. It will be open to the State to
make inquiry and fasten liability on the concerned for
recovery of the amount from the concerned officers. It is
open to the petitioner to take appropriate steps permitted
by law for prosecution. Rule is made absolute in those
terms.
Sd/- Sd/-
(S.M. GAVHANE, J.) (T.V. NALAWADE, J.)
No comments:
Post a Comment