TaxTMI 
TaxTMI 
1955 (10) TMI 3
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....can be set out briefly. In connection with certain proceedings pending before the Income-tax Investigation Commission it was found necessary to search two premises--17, Kalakar Street, and 36, Armenian Street, to inspect, take copies and secure possession of certain books, papers and documents believed to be in them. A warrant was issued by the Commission for this purpose in favour of four persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search. The authorised officials went to the Kalakar Street premises, third floor, on the morning of December, 1950. Matajog Dobey, appellant in Criminal Appeal No. 67, the darwan of Kashiram Agarwala, says that when he found them forcibly breaking open the entrance door of the flat he challenged them and requested them to desist. They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables. They tied him with a rope and assaulted him causing injuries. On these facts, he filed a complaint on 27th December, 1950, against H. C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Indian Penal Code. The four officials and some policemen ....
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....pending overruled the objection and directed that the case should proceed. Accused Bhari took the matter on revision to the High Court and succeeded. In Nandram Agarwala's case (Criminal Revision Petition No. 559/51) Chief Justice Harries and Banerjee, J., held that the test formulated by the Privy Council in Gill's case applied and that on a fair reading of the complaint, bereft of exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty. In Matajog Dobey's case (Criminal Revision Petition No. 312/52) the learned Judges (Lahiri and Guha, JJ.) came to the same conclusion in these words : "From the nature of the allegation, therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to his official character of the petitioner, that is, which attached them to his official character in holding the search." Mr. Isaacs, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions on their behalf. Firstly, an act of criminal assault or wrongful co....
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....Commission, (a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found ; (b) to place identification marks on such books, documents and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks ; (c) to make copies or extracts from such books, documents and papers ; (d) to seize such books, documents and papers and take possession thereof ; and (c) to exercise all other powers and duties under the said sections and the rules relating thereto." Straightaway, it may be conceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials. Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear. This, however, does not matter as the warrant authorises police assistance at the search. The version of the complainants as to what happened at the search is set out in the two co....
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....duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the Court, which is the ascertainment of the true nature of the Act. The objection based on entry into the wrong premises is of no substance ; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error ; or it may be that the party made an honest mistake. As a matter of fact, the account books etc. were found in P. 17 the premises raided. Slightly differing tests have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code : "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty." But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under sectio....
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....palli v. The State of Bombay, Bose, J., observes as follows : "Now it is obvious that if section 197 of the Code of Criminal Procedure is construed too narrowly, it can never be applied, for, of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning." The question of previous sanction also arose in Amrik Singh v. The State of Pepsu. A fairly lengthy discussion of the authorities is followed up with this summary : "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them then sanction under section 197(1) would be necessary ; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, then no sanction would be required." The result of the foregoing discussion is this. There must be a reasonable connection between the act an the discharge of official d....
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....cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a complaint. Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc. might be secreted or destroyed in the interval ; and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject matter for inquiry during the proceedings ; it would not make the act of removal improper or unlawful. It is a matter for doubt if Chapters V and VII of the Criminal Procedure Code can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, sub-section (9), of the Investigation Commission Act makes the provisions relating to searches applicable only "so far as they can be made applicable." The two English cases relied on are scarcely of any help. In Jones v. Owen, a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to remove that person....