Authored By : Francis Maclean, Banerjee

Francis Maclean, C.J.

1. In this case the plaintiff sued the defendant, who is asub-inspector of police, for damages for having, as he alleged, wrongfully andillegally entered and searched his house.

2. The question which we have to decide is whether thepolice officer, under the circumstances in this case, had any right to enterthe plaintiffs house and to make a search.

3. The Munsif before whom the suit was originally broughtfound in favour of the plaintiff, and he gave the plaintiff Rs. 10 for damages;the plaintiff stated that he desired nothing in the nature of large damages,and that the only object of his action was to clear himself against theimputation which lay upon him by reason of the proceedings which were taken bythe police officer.

4. The case then came before the District Judge in appeal.He reversed the decision of the Munsif and dismissed the plaintiffs suit. TheDistrict Judge in his judgment has not gone into the question of law which was raisedbefore Mr. Justice Rampini, and which has been discussed before us.

5. The plaintiff appealed from the decision of the DistrictJudge to this Court, and Mr. Justice RAMPINI affirmed that decision. Hence thepresent appeal.

6. The appellant bases his appeal upon the ground that thesub-inspector had no authority to search the plaintiffs house under thecircumstances in the case. I need not go into the facts in detail because theonly question which we have to decide and which we can decide now is a questionof law. But shortly the facts are these: The police sub-inspector received aninformation to the effect that the plaintiff was illegally cultivating poppyplants in his field and in consequence of that information he went to the spotwhere it was alleged that they had been cultivated. He there found only onepoppy plant, but in consequence of some indication which he said he saw therehe was led to suspect that there had been other poppy plants growing in thesame field, and that they had been previously removed. Drawing an inferencefrom that, that they had been carried to the plaintiffs house, the policeofficer went to the plaintiffs house and made search for those plants; but inthe result he found none. Criminal proceedings were then taken against theplaintiff, which ultimately resulted in his discharge. Hence the presentaction. These are all the facts that I need advert to for the purpose of thepresent case. The real question resolves into one of law, namely, whether thepolice officer had any authority to make the search which he did.

7. As I said before, the District Judge has not gone intothe question of law which was raised before Mr. Justice Rampini, and which hasbeen raised before us. Mr. Justice Rampini considered that under the Opium Act(I of 1878) the police officer had no authority to make the search he did.

8. That was practically admitted by the learned Vakil whoappears for the respondent, though at the conclusion of his argument he made asomewhat faint suggestion that the search was authorized under Section 14 ofthat Act. Looking at the language of that section, I think that this case doesnot come Within that section, and I agree with Mr. Justice Rampini on thispoint.

9. Then it is said that, assuming that the search was notauthorized by Act I of 1878, the police officer had power to make a searchunder the provisions of Section 165 of the Code of Criminal Procedure. Now toarrive at a conclusion as to whether that argument be sound or not we must lookat that section and also at some other sections of the Code. Section 165 saysthat "whenever an officer in charge of a police station, or a policeofficer making an investigation, considers that the production of any documentor other thing is necessary to the conduct of an investigation into any offencewhich he is authorized to investigate, he may make a search." I pass overthe consideration as to whether or not there was in this case any evidence toshow that the police officer had any "reason to believe" as requiredby the section, and before he can make the search, that the appellant would nothave produced the poppy plants if he had been summoned or ordered under Section91 of the Code to do so. In my mind this case hinges upon the question whetherthis was a case which the police officer was authorized to investigate; for, ifhe were not, it must be admitted, as indeed it has been admitted by therespondents Vakil, that Section 165 has no application to this case.

10. To ascertain then the cases which police officers areauthorized to investigate one must look at Sections 155 and 156 of the Code ofCriminal Procedure. Section 155 says this:

When information is given to an officer in charge of apolice station of the commission within the limits of such station of anon-cognizable offence, he shall enter in a book to be kept as aforesaid thesubstance of such information and refer the informant to the Magistrate.

No police officer shall investigate a non-cognizable casewithout the order of a Magistrate of the first or second class having power totry such case or to commit the same for trial or of a Presidency Magistrate.

11. If this case were a non-cognizable case, it is admittedthat there was no order of any Magistrate. Then Section 156 provides: "Anyofficer in charge of a police station may, without the order of a Magistrate,investigate any cognizable case which a Court having jurisdiction over thelocal area within the limits of such station would have power to inquire intoand try under the provisions of chapter XV relating to the place of inquiry ortrial.

12. What then we have to ascertain is whether this case wasa non-cognizable case within the meaning of Section 155 of the Code, or acognizable case within the meaning of Section 156. Cognizable andnon-cognizable cases are defined in sub-section (q), Section 4 of the Code."Cognizable offence means an offence for, and cognizable case means acase in, which a police officer, within or without the Presidency towns, may inaccordance with the second schedule or under any law for the time being inforce arrest without warrant."

13. It is, I think, clear that the police officer could notin this case have arrested without warrant in accordance with the secondschedule to the Code. Whether he could have done so "under any law for thetime being in force," I will deal with in a moment. "Non-cognizableoffence means an offence for, and non-cognizable case means a case in, whicha police officer within or without the Presidency towns may not arrest withoutwarrant."

14. The contention of the respondents is that this was acognizable case within the meaning of the definition of such case in the Codeof Criminal Procedure, the police officer having power to arrest withoutwarrant by virtue of the provisions of Section 24 of Act XIII of 1857; andthat, being a cognizable case, the police officer was authorized to investigatethe case without the order of a Magistrate according to the provisions ofSection 156 of the Code.

15. The question then is now reduced to whether the policeofficer could lawfully arrest without warrant. It is conceded that the only lawin force which could give him the power is Section 24 of Act XIII of 1857. Thatsection says: Whenever a police officer or Abkari daroga or Opium gomastahshall receive intelligence of any land within his jurisdiction to have beenillegally cultivated with poppy he shall immediately proceed to the spot; andif the information be correct shall attach the crop so illegally cultivated andreport the same without delay to the authority to which he may be subordinate.He shall at the same time take security from the cultivator of the said landfor his appearance before the Magistrate; and in the event of such cultivatornot giving the required security, he shall send him in custody to theMagistrate." Can this be said to give the police officer a power to arrestwithout warrant within the meaning of sub-section (q) of Section 4 of the Codeof Criminal Procedure I think not. It is not an absolute power of arrest; itis conditional only upon the accused not giving the required security. It maybe described as a right to take him into custody if he cannot give bail. Thatis what it amounts to. The police officer is bound to take security for theappearance of the accused before the Magistrate, consequently the policeofficer has no power to arrest under that section, unless and until the accusedperson refuses or is unable to furnish the security which is referred to inthat section. In my opinion such a qualified power of arrest---a power ofarrest not in respect of the offence alleged against him, but only of arrest indefault of his giving security for his appearance before a Magistrate---is notsuch a power to arrest without warrant as is pointed out in the definition of"cognizable offence" in the definition clause of the Code of CriminalProcedure. The power to arrest without warrant in that definition must, Ithink, be referable to a power of arrest in respect of and on account of theoffence alleged. But the power to arrest under Section 24 of Act XIII of 1857is not in respect of the offence alleged, but because the accused cannot orwill not give bail. That is quite a different thing. The case then not being acognizable case within the meaning of the definition in the Code, is anon-cognizable one, and under Section 155 the police officer was not authorizedto investigate it without an order of the Magistrate.

16. That being so, and inasmuch as his power to search underSection 165 of the Code is incidental to the conduct of the investigation intoany offence which he is authorized to investigate, I think that the policeofficer not having been authorized to investigate into the alleged offence hadno right to make the search he made under Section 165. I am, therefore, ofopinion that the police officer acted illegally in entering and searching theplaintiffs house, and in consequence an action for damages by the plaintiffwill lie against him. It was conceded that if the officer had no authority tosearch the plaintiffs house the action would lie.

17. At the same time I desire to add, and I think that it ismy duty to add, that I have seen nothing in this case to indicate, as regardsthe conduct of the police officer, that he acted otherwise than bond fide andin the belief that he was authorized to make the search, and that he was onlydoing his duty.

18. The result, therefore, is that the decrees of theDistrict Judge and Mr. Justice Rampini will be set aside, and that of theMunsif restored. The appellant will get his costs in all the Courts.

Banerjee, J.

19. I am of the same opinion. The question is, whether thedefendant, who is a sub-inspector of police, has made himself liable in thisaction for damages for having searched the house of the plaintiff under thecircumstances found by the learned District Judge. It has been found thatsearching the house of the plaintiff he acted, not maliciously, but in goodfaith under an honest belief that he was only doing his duty. That is a findingwhich this Court is bound to accept, and I may add that I see no reason todissent from that finding. I think that having regard to the circumstancesdisclosed in the evidence that is the only finding that a Court of Justiceshould arrive at. But, then, there still remains the question whether thatshould exempt the defendant from liability to an action like this, if thesearch of the plaintiffs house made by him was altogether unauthorized by law.To that question the answer must be in the negative. It therefore becomesnecessary to consider whether the search made by the defendant of theplaintiffs house was, or was not, authorized by law. It was but faintly urgedbefore us that the search was authorized by Section 14 of the Opium Act (I of1878). I quite agree with Mr. Justice Rampini in thinking that that sectiondoes not apply to this case, because there is nothing to show that the policeofficer had either personal knowledge or information in writing to the effectthat the house he searched contained opium or poppy heads, which would comeunder the definition of opium in the Opium Act. That being so, the question isreduced to this, namely, whether the search he made was authorized by Section165 of the Code of Criminal Procedure as Mr. Justice Rampini has held.

20. In order that a search may be authorized by thatsection, it is necessary that the police officer should consider that theproduction of some particular thing is necessary to the conduct of aninvestigation into any offence which he is authorized to investigate." Theoffence here was that of illicit cultivation of poppy, which is made punishableby Section 9 of the Opium Act,---and the question reduces itself to this,namely, whether that is an offence which a police officer is authorized toinvestigate without any order of a Magistrate.

21. Section 155 of the Code of Criminal Procedure enactsthat "no police officer shall investigate a non-cognizable case withoutthe order of a Magistrate." If the offence here was a non-cognizable offence,the police officer had no power to investigate it, and the case would not comeunder Section 165 of the Code. Referring to the definition of"non-cognizable case" and "non-cognizable offence" as givenin clause (q) of Section 4 of the Code of Criminal procedure, I find that a"non-cognizable offence means an offence for, and a on-cognizable casemeans a case in, which a Police officer, within or without e Presidency towns,may not arrest without warrant." Schedule II of the Code Criminal Procedureunder the head of "Offences against other Laws," shows r whatoffences not coming under the Indian Penal Code a Police officer may restwithout a warrant; and they are offences punishable with imprisonment or threeyears and upwards. The offence in this case is punishable under Section 9 ofthe Opium Act with imprisonment not exceeding one year; so lat the case is notone for which a Police officer may arrest without warrant under the provisionsof the Code of Criminal Procedure.

22. But then it was contended, and that contention has beenaccepted by Ir. Justice Rampini, that under Section 24 of Act XIII of 1857, thePolice Officer here was authorised, to arrest the plaintiff without a warrant.Section (sic)1, however, as has been clearly pointed out in the judgment of thelearned Chief Justice, does not authorise a Police officer, unconditionally, toarrest a person against whom the information mentioned in that section has beenreceived. It only authorises a Police officer to take security from the person (sic)informedagainst, and the power to take such person into custody arises only upon hisdefault in giving the security that may be demanded of him. The liable toarrest is a concomitant, not of the offence of which the person suspected, butof his inability to give security for the furnishing of which all he is liable.That being so, the case does not come under the definition on a cognizablecase, and the Police officer was prohibited by Section 165 of the Code toinvestigate it; and, accordingly, Section 165 had no application. The viewtaken of the case by Mr. Justice Rampini and the learned District Judge musttherefore be held to be incorrect, and the judgment and decree of both thelearned Judges must be set aside and the decree of the Munsif restored withcosts.

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Bahabal Shah vs.Tarak Nath Chowdhry (23.03.1897 - CALHC)