S.R Das Gupta, J.:— The petitioners before us are two in number. The petitioner No. 1 has been convicted under see. 358 and Sec. 332 of the Indian Penal Code and sentenced to rigorous imprisonment for six months and to rigorous imprisonment for three months respectively, both the sentences to run consecutively. The petitioner No. 2 has been convicted under Sec. 353 of the Indian Penal Code and sentenced to pay a fine of Rs. 200, in default to rigorous imprisonment for three months. The case was originally tried by a Magistrate, First Class, Uluberia, and he found the petitioners guilty of the aforesaid charges and sentenced them as aforesaid. Against the said convictions there was an appeal to the Additional Sessions Judge of Howrah, but the appeal was dismissed except that the sentences on petitioner No. 1 Wert directed to run concurrently. It is against the said order of the Additional Sessions Judge that the present application in revision has been made before us.
2. The case for the prosecution against the petitioners is as follows:—
There was a case instituted under Sec. 107 of the Code of Criminal Procedure on March 18, 1950, against the petitioner No. 1 Manicklal Mondal and others.
3. A search warrant was issued by the Sub-divisional Officer, Uluberia, on March 20, 1950, authorising the Officer-in-charge, Shyampur Police Station, to search for certain gold ornaments and documents lying in an iron safe in the house of one Narendra Nath Mondal of Naul. The said search warrant was endorsed in favour of one Someswar Bhattacharyya, Assistant Sub-Inspector of Police (P.W 1.), for execution on March 21, 1950. The said Someswar Bhattacharyya went to Naul to execute the search warrant in company with some search witnesses, and when they reached the house of Narendra Nath Mondal they called Narendra Nath Mondal and explained to him the contents of the search warrant in presence of the search witnesses. The room in question where the iron safe was to be searched was found locked and the police officer asked him to open the room. Naren Mondal thereupon made certain statements to A.S.I and in pursuance of that statement the petitioner Manicklal and another person Jaharlal Mondal were called. The Police Officer explained to them the contents of the search warrant and asked them to open the room, but they refused. The Assistant Sub-Inspector of Police then proceeded to break open the padlock when the petitioner Tulsirani Mondal, wife of the petitioner Manicklal Mondal, came near him and showed him a katari and threatened him. She was however persuaded to leave the place. Someswar Bhattacharyya then broke the padlock by means of a sapol and entered the room after observing all the formalities of the search. He seized the iron safe and with the help of two pieces of bamboo had the same earned from the place where it was found towards the house of one Debendranath Mondal. The labourers who were carrying the iron safe, after they had gone some distance, felt tired and were resting. It was then that the accused Manicklal Mondal suddenly came up to the spot, took the piece of bamboo and attacked the Officer, Someswar Bhattacharyya, with the same. The petitioner No. 2, Tulsirani Mondal, also came up in the meantime to the place of occurrence with a sapol and she made it over to her husband Manicklal Mondal. The other accused Jaharlal Mondal came there with a ballam to attack the complainant. There was a scuffle and ultimately Manicklal was overpowered and arrested. On these facts the petitioners had been charged under the sections to which I have referred, and they were found guilty and convicted as aforesaid.
4. Mr. Chatterjee, appearing on behalf of the petitioners, urged several points in support of the petition. In the first place he urged that the search warrant was illegal in view of the provisions of Sec. 96 of the Code of Criminal Procedure. His contention is that the Magistrate did not record in writing, before he issued the search warrant under Sec. 96, that he had reason to believe that a person to whom a summons or order under Sec. 94 or a requisition under Sec. 95, sub-sec (1), might be addressed, would not produce the document or thing as required by such summons or requisition. In other words, Mr. Chatterjee's contention is that the learned Magistrate has not recorded the grounds on which he had been satisfied that the person to whom a summons under Sec. 94 might have been issued would not, if it were so issued, have produced the document or thing required to be produced by issue of such summons. It does not appear to me that there is any substance in this contention. It may be true that the Magistrate has not recorded his reasons for believing that the person would not produce the document if he was merely served with a summons under see. 94. But, then, it does not appear from the section itself that the Magistrate was bound to record his reasons in writing. All that the section says is that the Magistrate must have reason to believe that such is the state of affairs. In other words, the Magistrate must himself be satisfied that there is necessity for the search warrant to be issued as otherwise the thing would not be produced. Apart from this, it appears that there were ample materials on which the search warrant could have been issued by the learned Magistrate. Proceedings under Sec. 107 of the Code of Criminal Procedure had already been started against the accused persons and the Magistrate had a police report before him that the accused persons were men of dangerous and desperate character and were likely to commit breach of the peace. There were, therefore, ample materials on which the learned Magistrate could come to the conclusion that the issue of a search warrant under Sec. 96 was necessary.
5. The next point urged by Mr. Chatterjee in support of the petition is that the room where the search warrant was executed was not the room belonging to Narendra Nath Mondal, but it was the room of his clients. He contended before us that the findings of the Magistrate point to that direction, but, it appears on evidence that Narendra pointed out the room as belonging to him to the Assistant Sub-Inspector of Police and this fact has been believed by the learned Magistrate. In the words of the Sessions Judge “in view of the fact that Narendra actually pointed out the room belonging to him to the A.S.I all vagueness about the matter and difficulty in executing the search warrant had come to an end.” If Narendra had pointed, out that room as belonging to him to the Assistant Sub-Inspector of Police and if thereafter the Assistant Sub-Inspector of Police had broken open the room, the petitioners having refused to open it by the keys, there was nothing wrong in the conduct of the Assistant Sub-Inspector, and the Assistant Sub-Inspector was fully justified in executing the search warrant in that manner. That being so, in my opinion, the contention of Mr. Chatterjee on this point must also fail.
6. Lastly, Mr. Chatterjee said something about the private defence of the petitioners in question. The question of private defence comes to an end, if the room in which the search warrant had been executed was the room pointed out by Narendra Nath Mondal and belonging to him. Apart from this, it appears that the incident in question took place not at the time when the iron safe was removed from the room where it was seized. The incident in question took place after the iron safe had been taken away to some distance and when the labourers having kept the iron safe were resting. It was then that these people came along and committed the offence. We do not think that there is any force in this contention of Mr. Chatterjee.
7. The result therefore is that the petition must fail and the Rule is discharged.
8. Mr. Chatterjee contended before us that we should consider the question of sentence. I do not think that the sentences in this case as varied by the Sessions Judge have been unduly harsh and I do not think we should interfere with the sentence which has been passed upon the petitioners.
9. The petitioner No. 1 must surrender to his bail bond.
Harries, C.J:— I agree.
A.K.D.G