Dhavle, J.:— The three petitioners were convicted by the Sub-divisional Magistrate of an offence under section 353 of the Indian Penal Code and sentenced each to a fine of Rs. 100 with six months' rigorous imprisonment in default. The Magistrate, also found two of the petitioners, Gopi and Mahabir, guilty of an offence under section 341 of the Indian Penal Code, but considered it unnecessary to pass a separate sentence under this section. On appeal the Additional Sessions Judge of Patna altered the conviction of the three petitioners under section 353 to one under section 352 but maintained the sentence. He also upheld the conviction of Gopi and Mahabir under section 341.

James, J., who admitted the revisional application, also directed a notice to issue on Gopi and Mahabir to show cause why sentence should not be pronounced against them under section 341 as no sentence was imposed under this section by the trial court. In doing so he observed that any imposition of sentence that may be made by the High Court, would amount to an enhancement and that a notice was, therefore necessary.

The facts are that the Sub-Inspector of police-station Maner was making an investigation, into a case of theft of a bicycle, and during the investigation received information that the stolen bicycle was concealed in the house of the petitioner Avadh Kurmi of village Musepur or Musapur. He proceeded at once to the house of Avadh and demanded the bicycle, and on receiving a refusal from the three, petitioners who were, all there asked who of his companions, Baldeo Misser (the man who had given, the information) and Deosaran, to act as search witnesses and intimated to the petitioners that, he would search the house. The petitioners told the, Sub-Inspector not to enter the house and when he insisted upon entering it, they pushed him back along with a constable who was with him. The Sub-Inspector had previously to this posted his men round the house, and upon being pushed back he asked Jumai Gope, a chaukidar, to run to the thana for help. The petitioner Avadh then went inside, took a bicycle and went away with it by the door where Jumai had been posted. The Sub-Inspector and the constable ran to arrest Avadh but were prevented, by Gopi and Mahabir from going in that direction.

The only point urged in support of the application in revision is that the search which the Sub-Inspector proposed to make was illegal, and that the petitioners were, therefore, entitled to resist it and committed no offence even under section 352 of the Indian Penal Code in pushing the Sub-Inspector and his constable back. The grounds on which it is contended that the search was illegal are the failure of the Sub-Inspector to call two respectable “inhabitants of the locality,” under section 103 of the Code of Criminal Procedure, to witness the search, and his failure to comply with the requirements of section 165 of the Code of Criminal Procedure in the matter of recording in writing the grounds of his belief that anything necessary for the purposes of his investigation, would be found in the house and that such thing could not in his opinion be otherwise obtained without undue delay, and specifying, in such writing the thing for which the search was to be made, and also in the matter of sending a copy of such record forthwith to the nearest Magistrate empowered to take cognizance of the offence. The Sub-Inspector has explained that in view of the attitude of the men who had assembled on the scene, he did not consider it worthwhile to serve upon them or upon any other persons of the busti a notice under section 103, asking them to witness the search, but asked Baldeo and Deosaran to act as search witnesses. Baldeo and Deosaran are both men of Balua and had come with, the Sub-Inspector to Musapur from that village. A reference to the survey map of the thana shews that Balua is at least four miles from Musapur and is separated from it by two or three villages. It is plain, therefore, that Baldeo and Deosaran cannot be said to be “inhabitants of the locality.” The lower courts have held that having regard to the attitude of the local inhabitants, the Sub-Inspector “did the only thing which was possible in those circumstances” and that there was “sufficient compliance with the law as enacted in section 103 of the Code of Criminal Procedure.” The Additional Sessions Judge has further observed that the gist of section 103 is that there must be respectable search witnesses; and this observation is supported by the opinion of Twomey, J., in Emperor v. Sit Nyein, that the stress is on the word “respectable” and not on the word “locality.” The respectability of the men from Balua has not been challenged. In my opinion the failure or inability of the Sub-Inspector in the circumstances to secure, search witnesses from the locality was no more than an irregularity and would not by itself have entitled the petitioners to resist the search if the Sub-Inspector's action had otherwise come within the first paragraph of section 99 of the Indian Penal Code. As to the failure of the Sub-Inspector to comply with the requirements of section 165 in the matter of making a record and sending a copy of it to the magistrate, the Additional Sessions Judge has held that the procedure of the Sub-Inspector not being strictly legal, the petitioners were not guilty of an offence under section 353, being an offence committed against a public servant as such, but that they were guilty under the general law, namely, on the facts proved, guilty of an offence under section 352, in that they pushed the Sub-Inspector otherwise than on grave and sudden provocation. The petitioners would certainly be guilty of this offence unless they were entitled in the circumstances to push the Sub-Inspector back in order to prevent him from searching Avadh's house. If the Sub-Inspector had proceeded strictly according to law, the petitioners would have had no right whatsoever to resist him. Now paragraph (1) of section 99 of the Indian Penal Code, to which I have already referred, leaves private persons without any right or private defence against any act of a public servant which may not be strictly justifiable by law, provided it does not reasonably cause the apprehension of death or grievous hurt, and is done, or attempted to be done, by the public servant acting in good faith under colour of his office. The proposed house search could not have reasonably caused any apprehension of death or grievous hurt, and it was a Sub-Inspector of police under colour of his office that proposed to make the search. The question then is whether the Sub-Inspector can be said to have acted in good faith on the occasion: if so, the petitioners were not entitled to resist him at all, but if otherwise, they were within their rights in keeping him out, and it is not alleged that they used more violence than was necessary to prevent him from conducting a search which was not strictly in accordance with the law. The learned Additional Sessions Judge has at one place in his judgment remarked that the Sub-Inspector was actuated by good faith; but I take the remark to mean no more than that the Sub-Inspector honestly believed the information that had reached him about the bicycle being concealed in Avadh's house. Such an honest belief was, however, not sufficient to bring the Sub-Inspector within the protection of the first paragraph of section 99; for having regard to section 52 of the Indian Penal Code, it was necessary for him, if he was to make the search “in good faith”, to proceed with due care and attention. The search was to be made under section 165, a section which authorised him to do so

“after recording in writing the grounds of his belief and specifying in such writing………………………the thing for which the search is to be made”,

and which required a copy of the record to be sent forthwith to the nearest Magistrate. The learned Additional Sessions Judge has found that none of these preliminaries to a legal search was complied with, and he has not found that the failure of the Sub-Inspector in this regard occurred in spite of “due care and attention”. The evidence of the Sub-Inspector gives no ground for holding that there was anything to prevent him from complying with the requirements in question; indeed his case was that he had complied with them, but this was not accepted by the Additional Sessions Judge.

In the view that I have taken it is unnecessary to discuss Emperor…Applicant; v. Param Sukh…Accused.(2) which were cited on behalf of the petitioners. The Assistant Government Advocate has cited Gokal v. Emperor(3) but that was a case where the constables who had arrested a woman on a defective warrant were clearly acting in good faith so that it was not open to the woman's friends to assault them. In view of the Sub-Inspector's unexplained failure to comply with the requirements of section 165 as found by the learned Sessions Judge, and especially of the failure to comply with the requirements of clause (1) of that section, I find it difficult to hold that he was acting in good faith, within the meaning of section 52 of the Indian Penal Code, and the petitioners were, it seems to me, justified in pushing him and his constable back in order to prevent a search which was not strictly in accordance with the law. I would, therefore reverse the conviction and with it the sentence passed on the petitioners under section 352 of the Indian Penal Code.

As a matter of fact the charge that led to this conviction was in these terms:

“That you on or about the 12th day of April, 1930, at Musapur, police-station Maner, used criminal force to Sub-Inspector J.N Misser and constable Suraj Singh with intent to prevent them from discharging their duty as public servants and thereby committed an offence punishable under section 353…………………………”

This is really wide enough to cover the action of Gopi and Mahabir in preventing the Sub-Inspector and the constable from catching and arresting Avadh when he was going away with the bicycle. There is force, however, in the contention of the learned Counsel for the petitioners that the charge under section 353 was taken by all concerned to be confined to the act of pushing the Sub-Inspector and the constable and that the obstruction offered to them later on when Avadh was going away with the bicycle formed the subject of the charge under section 341 of the Indian Penal Code. The lower courts have found an offence under this section brought home to Gopi and Mahabir. In showing cause why sentence should not be pronounced against them under this section, learned Counsel has found it impossible on the facts found to challenge the conviction, but he has laid stress on the fact that the trying magistrate, who knew all the circumstances, considered a separate sentence unnecessary. The offence was, however, not by any means venial. The Sub-Inspector of the thana was making, an investigation into the theft of a bicycle, and was acting under colour of his office in proposing to search the house for that, article. It was fortunate for these petitioners and for their, relative Avadh that the Sub-Inspector's, procedure was marked by irregularities they could have, had, no knowledge of this, but in their defence they were entitled to rely on it. When, however, it came to Avadh escaping with the bicycle and the Sub-Inspector and the constable going after him to arrest him—arrest him under section 54 of the Code of Criminal Procedure—Gopi and Mahabir acted lawlessly and without any technical excuse to be subsequently found for them Gopi is the father and Mahabir some kind of uncle of Avadh, but their offence really comes under a much graver section, viz., section 353, though fortunately for them they were only charged under section 341 for this act, and they are naturally not prepared to face a retrial. Haying regard to Gopi's age, however, I would sentence him under section 3411 of the Indian Penal Code not to any substantive imprisonment but to a fine of Rs. 200, with one week's simple imprisonment in default; and I would sentence Mahabir under the same section to one month's simple imprisonment and a fine of Rs. 100 with, one week's simple imprisonment in default.

Avadh who has been acquitted will be entitled to the refund of any part of the fine that he may have paid.

Macpherson, J.:— I agree to the order proposed.

I am inclined to hold that the conviction under section 353 is good at least against Gopi and Mahabir because of their obstruction to the arrest of Awadh. But as it is true that the Courts below dealt vaguely with this part of the case it is not necessary to press the point, especially in view of the sentence proposed which is adequate punishment for these petitioners. On the question of law I prefer not to express a final opinion as to whether failure on the part of the Sub-Inspector to comply with section 165(1) of the Code of Criminal Procedure would give room for a finding that the Search was “without due care and attention.” But I am satisfied that failure on his part to comply with section 165(5) would afford no ground for such a finding.

Order modified.