Ram Prasad and Others vs Emperor

Varma, J.—This is a reference by the Sessions Judge of Patna, which was originally heard by Dhavle, J. and then by a Division Bench of this Court and has now been placed before us under the orders of the Hon''ble the Chief Justice. The three accused persons were tried u/s 187, Penal Code, for having refused to sign a search-list prepared by the Excise Sub-Inspector of Barh in connexion with a search in the house of one Gainu Pasi. The case for the prosecution was that the Excise Sub-Inspector raided the house of Gainu Pasi and recovered four bottles of liquor, five seers of fermented mahua, and some apparatus in presence of the three accused persons. The articles seized were labelled and the three accused persons signed the labels. Accused Earn Prasad actually granted a receipt for having received the seal with which the bottles were sealed up. The Sub-Inspector prepared a search-list (Ex. 2) and requested the three accused persons who attended as witnesses to sign the search list.

The prosecution case was that the accused were dissuaded by the mahalla people and therefore they refused to put their signatures on the search list in spite of the warning given to them by the Sub-Inspector as to the consequences attending their refusal to do so. There were three witnesses on behalf of the defence and four on behalf of the prosecution. The defence was that the accused refused to sign the list because they wanted to mention in it that the bottles were planted in the house by the Sub-Inspector and his staff, but the Sub-Inspector did not permit them to do so; and they further alleged that the Sub-Inspector handled them roughly for their attitude. The defence set up was not accept, ed by the Court and ultimately the accused were convicted and sentenced u/s 187, Penal Code to pay a fine of Rs. 25 each, in default to undergo simple imprisonment for one and a half month.

Manifestly the search was held under the provisions of Section 103, Criminal P.C. which runs as follows:

(1) Before making a search under this Chapter (Ch. 7, of Processes to Compel the Production of Documents and other Moveable Property, and for the Discovery of Persona Wrongfully Confined), the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.

(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(3) The occupant of the place searched or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request.

(4) When any person is searched u/s 102, Sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.

(5) Any person, who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence u/s 187, I.P.C.

The final passage in Clause (1) "and may issue an order in writing to them or any of them so to do" and the entire Clause (5) have been introduced by the Amending Act of 1923. The effect of these provisions is, my opinion, that the officer making a search can, if necessary, secure the attendance of persons by issuing written orders to attend and witness a search; and Clause (5), if at all, purports to emphasize the fact that a refusal or neglect to attend and witness a search would not be deemed to be an offence if an order in writing was not delivered to the person, or, if he had some reasonable cause to refuse or neglect to attend in spite of an order in writing given to him to attend and witness. It is admitted that no order in writing was delivered or tendered in the present case. Under these circumstances the question for consideration by this Full Bench is whether the accused have been rightly convicted u/s 187, I.P.C.

In this connexion reference has been made to the opinion of a Full Bench of the Madras High Court in In the Matter of Ramaya Naika (1903) 26 Mad. 419 where the learned Judges held that the accused was not guilty of an offence u/s 187, I.P.C. simply because he had refused to sign the search list. In coming to their conclusion the learned Judges assumed that u/s 103(1), Criminal P.C. the party called upon to attend and witness a search is under a legal obligation to attend the search and sign the search list. But in construing the substantive Section 187, I.P.C. their Lordships observed that the word "assistance" occurring in the first half of the section is ejusdem generis with the various forms of assistance specified in the latter half of the section; that the "assistance" demanded must have some direct personal relation to the execution of the duty by the public officer; and that the word "assistance" as used in the section implies that the party who assists is doing something which, in ordinary circumstances, the party assisted could do for himself. Their Lordships were of the opinion that the signing of the Search list required by Section 103, Criminal P.G. is an independent duty imposed on the witness.

In a subsequent decision of the same High Court in Ippili Magatha v. Emperor AIR (1920) Mad. 286 the learned Judges of the Division Bench upheld the conviction of the accused u/s 187, I.P.C. for having refused to assist the Salt Inspector in making a search. Although the report of that case is very meagre, yet it is quite clear that the learned Judges did not think that the case was covered by the opinion of the Full Bench in In the Matter of Ramaya Naika (1903) 26 Mad. 419.

It is obvious also that in In the Matter of Ramaya Naika (1903) 26 Mad. 419 the question before the Full Bench was whether or not there was any criminal liability incurred by the person who had attended the search but had refused to sign the search list, whereas in the later Ippili Magatha v. Emperor AIR (1920) Mad. 286 the conviction of the accused was for having refused to assist a public officer in the act of making a search. Refusal to assist in making a search, and a refusal to sign a search list after having attended and witnessed a search, are really two different acts.

In the former case the person altogether with holds his assistance to the public officer; whereas in the latter case he only withholds his signature from the document called the search list. Section 187, I.P.C. covers offences arising out of omission to assist public servant when bound by law to give assistance. It provides:

Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to Rs. 200, or with both;

and if such assistance be demanded of him by a public servant legally competent to make such demand for the purposes of executing any process lawfully issued by a Court of justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

Reference may be made to various other cases in illustration of offences covered by Section 187, I.P.C. In In the matter of Kali Prosunna Ghose (1881) 7 C.L.R. 575 the accused was convicted u/s 187, I.P.C. for having neglected to nominate a successor of a village watchman On being called upon by a public officer to do so; but their Lordships of the Calcutta High Court set aside his conviction on the view that Section 187 "applies to direct refusal or omission of a person bound by law to render or furnish assistance to a public servant to do so". A similar view has been taken by the Allahabad High Court in Joti Prasad and Others Vs. Emperor, In that case an agent of a zamindar had refused to lend the gun of the zamindar and some villagers refused to join an expedition of the Sub-Inspector of Police in search of dacoits; and the learned Judges held that in those circumstances the accused were not guilty of an offence punishable u/s 187 inasmuch as the refusal of the accused to the public servant so to assist did not amount to a failure of public duty required u/s 42, Criminal Procedure Code.

It must be said that by the amendments of 1923 in Section 103, Criminal P.C., it has been provided that the refusal to attend and witness a search when called upon to do so in writing will be deemed to be an offence u/s 187., I.P.C. Section 103 requires that a search is to be made in the presence of witnesses and as I read it, there are only three important stages in a search: viz. (1) that there must be some respectable persons present at the spot to witness the search; (2) that every process in the conduct of the search must be witnessed by those witnesses, and (3) that a list must be prepared, which will bear the signatures of those witnesses, of the things seized in the search Now, when a person turns up to witness a search and has actually witnessed all the details in the con. duct of the search, if he refuses thereafter, with or without reasonable cause, to sign the search list prepared, it cannot be said that he has not attended or witnessed the search as required by Section 103; he can still be called as a witness to prove the search. By providing in Clause (1) of the section that the officer about to make a search "may issue an order in writing to them or any of them so to do", the Legislature invests the officer engaged in a search with a power which he might exercise, if necessary, to compel the attendance of witnesses so as to be able to conduct a valid search; and by Clause (5) what is made penal is only the refusal without reasonable cause to attend and witness a search. Penal laws must be strictly construed. There is nothing in the section to compel the person witnessing the search to sign the search list also.

In my opinion the Legislature has deliberately omitted to make penal the refusal to sign the search list, and there are good reasons behind it. When a witness puts his signature on the search list it indicates his approval; but if he has any reason to be dissatisfied with the manjer of the search, he must be given an opportunity to signify his disapproval then and there, which can be done by refusing to sign the search list.

It may be said that the witnesses could sign the search list after noting the irregularities which came to their notice; but we find that the search list (Ex. 2) is on a printed form prescribed for " List of articles found on search u/s 72 or 74, Act 2 of 1915, &c. " Although Col. 7 provides for " Remarks of the officer conducting the search," Col. 8 provides only for the " signature of witnesses at the time of search." There is nothing in the form to provide for remarks of witnesses present at the search. The result of a witness''s refusal to sign the list may necessitate proving the search in some other way. Indeed under Clause (2) of Section 103 no person witnessing a search shall be required to attend the Court as a witness of the search unless specially summoned by it. The amendment in Clause (1) of the section strengthens the hands of the officer making a search by authorizing him to issue written orders to secure the presence of witnesses and their witnessing the search.

But so far as the signing of the list is concerned, the position is the same as it was at the time of the opinion pronounced by the Full Bench of the Madras High Court in In the Matter of Ramaya Naika (1903) 26 Mad. 419 Refusal by a witness to sign the search list can be made penal u/s 103 only by holding that signing the search list is a part of witnessing the search; but such an interpretation will not be tenable in view of the injunction in Clause (2) that

the search shall be made in their (the witnesses'') presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses.

Of the three stages in a search that I have mentioned above, with regard to the first stage no authority is needed to show that the witnesses must be in attendance before the search actually begins. With regard to the second stage, i.e. the actual search, I may usefully quote the observations of a Division Bench of the Bombay High Court in Dinkar Nahnun v. Emperor AIR (1930) Bom. 169. Their Lordships said as follows:

We consider that both the letter and the spirit of Section 103, namely the provisions that the panchas are to attend, witness the search, and that the search shall be made in their presence, require that the panchas should actually a company the persons making the search and should be actual witnesses to the fact of the finding of the property. It is not, in our opinion, a sufficient compliance with this section that the panchas should merely be summoned and kept present outside a building while the search is being carried on within it, and then called in to see what has been found.

With regard to the third stage, i.e. the search list, the presumption of validity of a search arises from the search list which has been signed by witnesses.

In Ana Dewa Singh v. Emperor (1908) 4 L.B.R. 134 where the search list consisting of three pages was signed by the search witness only on the first two pages, the learned Judge refused to draw any inference against the accused on the basis of the unsigned pages. In my view Section 103 ''enacts that searches must be conducted with all due care, that there must be respectable persons present at them to'' bear testimony to the fact that the manner of the search was above board. The learned Assistant Advocate-General has argued that once a person comes to witness a search he is bound to sign the search list and that the absence of any written order from the officer would not absolve the witness of the obligation and refusal to sign the search list would be punishable u/s 187, I.P.C. This argument cannot prevail, because that would amount to holding a person guilty of an offence by agreement. There may be rare instances in which a witness may refuse to sign the search list without a reasonable cause; but in Section 103, Criminal P.C. the Legislature has not taken notice of a rare possibility of the kind. There is no doubt in my mind that the word ''assistance'' in the first part of Section 187, I.P.C., is ejusdem generis with the various forms of assistance specified in the latter half of the section. As some doubt seems to have been raised by the various decisions about the penal liability of witnesses who refuse to take part in certain stages of the search the amendment of 1923 has made it penal by Clause (5) of Section 103, Criminal P.C. for a witness to refuse when asked in writing to attend and witness a search. In other words, assisting a search officer by attending and witnessing a search has been made ejusdem generis by the Legislature with the kind of assistance referred to in the second part of the section. But again it is the refusal to attend and witness the search that has been made penal and not the signing of the search list.

With great respect therefore I entirely agree with the opinion expressed by the learned Judges of the Madras High Court in In the Matter of Ramaya Naika (1903) 26 Mad. 419 and for the reasons given above I am opinion that a refusal to sigh a search list by a witness to search cannot by itself be deemed to be an offence u/s 187, I.P.C.

I accordingly accept the reference, set aside conviction and sentence passed on the accused and direct that the fines, if paid, be refunded to them.

Manohar Lall, J.

The question referred to the Full Bench is to consider the correctness of the decision of the Full Bench of the Madras High Court in 26 Mad 4191 and necessitates an examination of the validity of the contention that an accused person, who refuses to sign the search list when required to do so by the Sub-Inspector after having attended and witnessed the search as provided by Section 103, Criminal P.C. is guilty under the provisions of Section 187, I.P.C. This case was originally heard by Dhavle, J. who, considering the importance of the question involved referred it for a decision to a Division Bench who, in their turn, thought that the matter should be decided by a larger Bench.

Accordingly under the orders of the Hon''ble the Chief Justice this Full Bench has been constituted. The facts of the case are no longer in controversy and may be shortly stated thus: On the morning of 4th October 1937 the Excise Sub-Inspector raided the house of a certain Pasi and recovered some bottles of liquor and other articles. These articles were admittedly labelled and signed by the three accused persons. Thereafter the Sub-Inspector prepared a search list and asked the three accused persons, who had attended and witnessed the search, to sign the list, but they refused to do so. Their defence that they did not refuse to sign the list without any reasonable and just cause need not be considered here because it has been rejected by the Court of fact. That Court was under the impression that the provisions of Section 103, Criminal P.C. did not apply to a search made under the Excise Act but this view is erroneous (see Section 85, Excise Act). It is only necessary to state here another circumstance which may have some bearing on the decision of the question at issue namely that it is an admitted fact in the present case that the Excise Sub-Inspector did not call upon the petitioners by any order in writing to attend and witness the search.

The question then arises whether the petitioners are not guilty of the offence provided in section 187, I.P.C. on the ground that they "being bound by law to render or furnish assistance to a public servant (the Excise Sub-Inspector) in the execution of a public duty (namely to conduct a search) intentionally omitted to give such assistance.

It is important to find out in the first instance what are the obligations in law of any private individual in the position of the present petitioners to render or furnish assistance to a public servant in the execution of a public duty. To my mind this can only be answered by construing the provisions of Section 42, Criminal P.C. or any other law bearing on the subject which for the time being may be in force. It would also be necessary to ascertain what the public duty in the present case was which the Sub-Inspector was executing or discharging. Section 42, Criminal P.C. lays down definite circumstances in which every person is bound to assist a police officer reasonably demanding his aid. These are specifically mentioned in Clauses (a) and (b) of that section. It is common ground that the demand of the Sub-Inspector does not come within the provisions of Section 42. It was argued by the learned Assistant Government Advocate, who appeared to assist us at our request, that the petitioners were bound to sign the search list because this is specifically provided in Sub-clause 2, Section 103, Criminal P.C. Now Sub-clause 2 runs as follows:

The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses.

It is obvious that the statute here merely gives a direction that after the search has been completed and a search list has been prepared by the Sub-Inspector it is to be signed by the witnesses attending and witnessing such search, but it does not provide any penalty if they refuse to sign it. The penalty if any must be found elsewhere; it is not in sub-Clause 2 of the section. The critical question to decide is whether when the Sub-Inspector asked the witnesses to sign the search list he was doing so in execution of any public duty.

In my opinion the answer must be in the negative. The public duty of the Sub-Inspector in the present case was to conduct the search in the manner provided in the Code, that is to say he was required to call upon certain witnesses of the locality, so as to make a search in their presence and after this was done he was required to prepare a search list; and then his duty ended. It is argued that it was also his duty to get this witnesses to sign the search list, but I am not prepared to accept this. The Legislature* has not said so and provides no penalty for a refusal of a witness to sign the search-list or for an omission of the Sub-Inspector in getting it signed. If the search list is not signed, the Sub-Inspector in my opinion* cannot be said to have been refused assistance in the execution of his public duty All the assistance which the law required the search witnesses to give to the Sub. Inspector was to be present at the search and to witness the search. The word "witness" is defined in Annandale''s Dictionary, Edn. 9, to mean "to see or know by personal presence, to observe."1 This meaning of the word ''witness'' as used by the Legislature is also clear when the language of Section 103 is examined. It is to be noticed that the statute uses the words "to witness the search" and not "to witness the search list" In my opinion it will be adding to the language of the statute to interpret the words "witness the search" as meaning "witness the search and to sign the search list."

It is interesting to notice that by Act 18 of 1923 some additions were made to Section 103. In the first Clause the words "and issue an order in writing to them or any of them so to do and the whole of Sub-clause 5 were added. But in the sub-clause so added the words "any person who refuses to sign, the search list" are not mentioned. Nevertheless I am asked to construe the words-"witness the search" as including "sign the search list" upon the argument that if such a construction is not admitted, the result would be that the search list would never be admissible in evidence and it will open, the door to witnesses unreasonably refusing to sign the search list and thereby stultifying the very object of the Legislature in having the document duly witnessed by the search witnesses for production in Court at the time of the trial.

The answer to this contention is that it is not the function of the Court to legislate or to look into the possible inconvenience that may arise to the prosecution or to the accused if the true construction of the statute is adopted. The Court is bound to adopt the| true construction of the statute aided by the meaning of the words deliberately adopted by the Legislature irrespective of the consequences that it may have on an assumed policy of the Legislature or on its, unexpressed intention. I may usefully refer here to the case in Solai Naik v. Emperor (1911) 34 Mad. 349 where a Full Bench of the Madras High Court gave the ''opinion that where a search has been conducted u/s 103, Criminal P.C. evidence can be given regarding the things and regarding the places ''in which they were found irrespective of the evidence of the list which the law directs to be drawn up relating to the particulars of the property found and that the provisions of the Evidence Act do not prevent the adoption of this course. In the course of the argument it was pointed out by ''the learned Judges that a search cannot be made in writing and that the observations of physical facts must always and can be allowed to be proved by oral testimony in Courts. With respect I agree with these remarks.

I now come to the case law upon the point. The most important case upon the subject is the case in 26 Mad 4191 the correctness of which is being considered in the present reference. In that case the identical question before us was in debate. The accused in that case was called upon by an Abkari Inspector to attend a search which he did, but refused to sign the search list after it was prepared. The learned Judges held that the assistance which a person is required to give to a public officer must have some direct personal relation to the execution of the duty by the public officer and that the signing of the search list required by Section 103 is an independent duty imposed upon the witness and also that the word " assistance " implies that the party who assists is doing something which, in ordinary circumstances, the party assisted could do for himself. With great respect in my opinion this is the correct exposition of the law only in so far as it defines the meaning and limits of the word "assistance," but I do not agree that the section casts any obligation or legal duty one the witnesses to sign the search list. By refusing to sign the search list the search witness does not prevent the search from being carried out. The list which he is required to sign is the search list which has been prepared after the search has been conducted in the manner provided by the Code. After the search list has been prepared the Sub-Inspector cannot physically force the witnesses to sign it. It is the law which gives a direction which only means that in order that a search list may be valid it must bear the signatures of the search witnesses, but unfortunately the Legislature has not provided or has not thought fit to provide any penalty if a search witness refuses to sign it as they have done in cognate cases: e.g. Section 178, I.P.C. where a person refuses to bind himself by oath or affirmation to state the truth; Section 179, I.P.C. where a. person refuses to answer any material question put to him; Section 180, I.P.C. where a person refuses to sign any statement made by him.

I have selected these three instances as in every one of these cases it may be argued with equal force that the person concerned is refusing to assist the public servant concerned in the discharge of his duty. If that argument were correct, these provisions would be redundant. It may well be that the Legislature thought that any person who takes the trouble to attend a search would have no hesitation in signing such a search list if asked, and left it to his discretion not to sign it as nobody can be forced to sign an incorrectly drawn up document as if it was true. It is also to be noticed that when Section 103 was amended by inserting Sub-clause 5, the Legislature must be presumed to have known the judicial interpretation which was placed upon the section, as it then existed, by the Madras High Court; nevertheless they did not think it proper to amend the law in such a way as to indicate that the Madras Full Bench decision was incorrect.

The amendment by the insertion in Clause (1) and of Clause 5 is again of very great importance for the decision of the present case. It provides that a Sub-Inspector may issue an order in writing to any per. son to attend and witness a search and if after such an order has been delivered or tendered to such a person he refuses or neglects to attend and witness a search under this section without reasonable cause he shall be deemed to have committed an offence u/s 187, I.P.C.

In other words were it not for this amendment the refusal by a person to attend and witness a search would not be punishable under the Penal Code. This confirms my view that a refusal to attend and witness a search does not come within the duty imposed upon the subject by Section 42, Criminal P.C. Why did the Legislature, then, omit to insert the words "and sign the search list"? The obvious answer to my mind is that refusing to sign the search list is not refusing to assist a Sub-Inspector in the discharge of his public duties. A similar interpretation of Section 187, I.P.C. was adopted as far back as the year 1881 by the Calcutta High Court in In the matter of Kali Prosunna Ghose (1881) 7 C.L.R. 575 In that case the landholder who was called upon u/s 21, Regulation 20 of 1817 to nominate some person to act as a village watchman, the former watchman having either died or been dismissed, neglected to do so although a purwannah was issued reminding him of his duty. The landholder was, upon these facts, convicted u/s 187, I.P.C. In setting aside the conviction the learned Judges observed:

That section (Section 187) applies to direct refusal or omission o� a person bound by law to render or furnish assistance to a public servant to do so.

The next case which I notice is the case in Joti Prasad and Others Vs. Emperor, In that case the Sub-Inspector of Police who received an in formation that some persons who had been concerned in a number of dacoities in the neighbourhood and who recently committed a dacoity at a village about two miles off had been seen in a forest tract nearby, called upon the zamindar''s agent to lend him a gun which belonged to his master but who was then absent and also called upon two villagers to join him in a search for the dacoits. The agent refused to lend the gun and the two villagers refused to join the expedition in search of the dacoits. In these circumstances the conviction of the accused u/s 187, I.P.C. was set aside by a Division Bench of that Court.

In the course of their decision the learned Judges pointed out that the duties which are imposed upon the public must come within the express words of Section 42, Criminal P.C. and that the accused were perfectly justified in refusing to carry out the wishes, of the Sub-Inspector. In other words the accused in that case were not bound by law to render or furnish the assistance which the public servant required on the allegation that it was in execution of his public duty.

In Amika Prasad and Others Vs. Emperor, again the test employed to determine the validity of the conviction u/s 187, I.P.C. was to see if the conduct complained of came within the mischief of Section 42, Criminal P.C. The only other case which may be noticed is the case in Ippili Magatha v. Emperor AIR (1920) Mad. 286 a decision of the Madras High Court, which it was suggested in the course of the argument, appears to throw some doubt upon the correctness of the earlier Madras Full Bench decision. The facts of this case are not sufficiently reported but it appears from the meager report that the accused were called upon to assist the Salt Inspector in witnessing a search but they refused to attend. Their excuse was that they were not compellable by the Inspector to attend the Court to give evidence without a summons in that behalf. It was pointed out that the duty for discharging which the accused were requisitioned by the Inspector to assist him in making a search was ejusdem generis with that mentioned in Clause 2 of Section 187, I.P.C. Consequently it was held that the refusal of the accused to assist the Inspector was rightly punished under the Penal Code. In my opinion this decision far from throwing any doubt on the correctness of the decision of the Full Bench of the Madras High Court directly affirms and in fact follows that decision accurately. But the importance of this ruling is that it appears to be the occasion for the amendment of Section 103. The Legislature felt that there was no duty on a person to come and attend and witness the search as it was not covered by Section 42. Therefore they created a duty on a person to a limited extent as provided by the amendments already noticed.

In the result I would hold that the decision of the Madras Full Bench, namely that reported in In the Matter of Ramaya Naika (1903) 26 Mad. 419 is the correct law to the extent indicated above and the effect of this decision is not in the least touched by the amendment of Sub-clause 5 inserted in 1923 in Section 103, Criminal Procedure Code.

It was argued on behalf of the accused that in the present case the conviction is illegal because the Sub-Inspector admittedly had never issued any order in writing for them to attend and witness the search. On behalf of the Crown it was contended by the learned Assistant Government Advocate in reply that the provisions of Sub-section 5 have no application to the facts of the present case because it was not necessary for the Sub-Inspector to issue an order in writing as the accused themselves offered to come and attend the search and in fact they did so. His argument is that Sub-clause 5 only applies to those cases where the Sub-Inspector has reason to suspect that the person whom he will call upon to attend and witness the search will refuse to do so. He also contends that where the accused, as in the present case, themselves come attend the search and witness it they are bound in law to sign the search list. I am unable to agree with this contention. The opening clause of Section 187, I.P.C. is "whoever being bound by law to render or furnish assistance to any public servant"; the words are not "whoever agrees or volunteers to render or furnish assistance to any public servant." It may be that the Sub-Inspector has a statutory right to call upon the persons to attend and witness the search but the (statute to my mind before the amendment in 1923 did not make it obligatory upon the per. sons so called even to attend and witness the search. This obligation and only this obligation has now been imposed for the first time by Sub-clause 5 and in order to bring about and materialize this obligation the statute requires that an order in writing by the Sub-Inspector is necessary before the person called upon can be deemed to have committed an offence by his refusal or negligence to do so without a reasonable cause. According to the well-known principles of jurisprudence the requirements of a statute must be strictly observed and complied with before the liberty of the subject can be taken away by sending him !to jail or by exacting a fine from him. The conviction is consequently liable to be set aside on this ground also. I therefore, for the reasons indicated, agree with my learned brother Varma and hold that the convictions and sentences passed on the petitioners must be set aside.

Chatterji, J.

This is a reference u/s 438, Criminal P.C. relating to the conviction of three persons u/s 187, I.P.C. It was originally heard by Dhavle, J. but on account of the general importance of the question involved it has been referred to this Full Bench. The point is whether refusal by a search witness to sign a search, list prepared u/s 103, Criminal P.C. amounts to an offence within the meaning of Section 187, I.P.C. In the present case the search was conducted by an Excise Sub-Inspector in exercise of his powers u/s 74, Bihar and Orissa Excise Act (Act 2 of 1915). By virtue of the provisions of Section 85, Excise Act the search must be taken to have been held u/s 103, Criminal P.C. What happened was that the Excise Sub-Inspector called the three accused persons to attend and witness the search of a house. He did not issue any order in writing but they came at his verbal request and witnessed the search. Certain articles were recovered and a search list was prepared by the Sub-Inspector. In the meantime a large number of people of the locality assembled and at their intervention the witnesses, though asked to do so, refused to sign the search-list. They were accordingly placed on trial for having committed an offence u/s 187, I.P.C. They were convicted and sentenced to pay a fine of Rs. 25 each. Against the conviction and sentence the accused persons filed an application for revision in the Court of the Sessions Judge.

The learned Sessions Judge in referring the case to this Court, relies on a Full Bench decision of the Madras High Court In the Matter of Ramaya Naika (1903) 26 Mad. 419 where it was held that the signing of a search list is an independent duty imposed on a search witness by Section 103, Criminal P.C. and does not come within the meaning of the words "assistance" used in Section 187, I.P.C. Section 187, I.P.C. runs as follows:

Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both ; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a Court of justice or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 500 or with both.

It is obvious that in order to constitute an offence under this section the person charged with the offence must be bound by law to render assistance to the public servant concerned in the execution of his public duty. Now it will be necessary to refer to the following relevant provision of Section 103, Criminal P.C.:

(1) Before making a search under this Chapter the officer or other person about to make it shall call upon two or more respectable inhabitants; of the locality in which the place to be searched ,is situate to attend and witness the search, and may issue an order in writing to them or any of them so to do.

(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses, but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.

(5) Any person who without reasonable cause refuses or neglects to attend am witness a search under this section when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence u/s 187, I.P.C.

The last portion of Clause (1) which has been underlined (italicised here) and the entire Clause (5) were introduced in the Code by the Am. ending Act of 1923. These amended portions of the section make it clear that when an order in writing is issued by the officer concerned to any person to attend and witness the search, the person so ordered is bound by law to obey it and if he fails to do so without any reasonable excuse he will be deemed to have committed an offence u/s 187, I.P.C. It follows that where no such written order has been issued by the officer no person is bound by law to render assistance to him in making the search. In the present case, as I have already stated, there was no written order issued by the Excise Sub-Inspector to the search witnesses. No doubt they came to attend and witness the search on his verbal request but it cannot be said that they were bound by law to do so. Necessarily they were not bound to sign the search list either.

It is contended by the learned Assistant Government Advocate on behalf of the Crown that though at the verbal request of the Sub-Inspector the witnesses were not bound to attend and witness the search, when they did in fact come and witness the search they became search witnesses and were therefore bound to sign the search list under the provisions of Clause (2) of Section 103, Criminal P.C. which require that the search list shall be signed by the witnesses. I am unable to accept this contention. It will be unreasonable to hold that if person who is not bound by law to do a certain act voluntarily agrees to do it, he will be deemed to have made himself subject to any criminal liability that may attach to the nonperformance of the act. Criminal liability is the creation of statute and cannot be created by agreement. I am therefore of opinion that the accused persons in the present case did not commit any offence u/s 187, Penal Code, and the reference ought to be accepted and they should be acquitted.

In this view it is unnecessary to decide as an abstract proposition of law whether refusal to sign a search list amounts to an offence u/s 187, Penal Code. But as the question has been referred to this Full Bench and has been argued at the bar, I desire to express my own opinion in the matter. By Section 103, Clause (5), Criminal P.C. what is made penal is the failure toatteni and witness a search in obedience to the written order issued under Clause (1) of that section. To witness a search means to be present at the search and does not include the act of signing the search list. Therefore the signing of the search list is not an obligation imposed by the written order nor is the refusal to sign this list made punishable under Clause (5) of Section 103. But Clause (2) of the section enjoins that the search list shall be signed by the search witnesses. This to my mind casts an obligation on them. Now the question is whether failure to discharge this obligation amounts to refusal to render assistance to the officer concerned in the execution of his public duty. The duties of an officer conducting a search u/s 103, Criminal P.C. are laid down in that section. He is required to make the search in the presence of two or more respectable witnesses of the locality and, if any articles are seized in the search, to make a list of them which shall be signed by those witnesses. Obviously it is his duty to see that the search list is prepared and completed according to the requirements of the section. Unless and until that is done his duty is not executed. In order to enable him to execute his duty it is necessary that the search witnesses should assist him by signing the search list because without their signatures the list will not be complete according to the provisions of law. With all respect to the learned Judges who decided the Full Bench case in In the Matter of Ramaya Naika (1903) 26 Mad. 419. I do not consider that the duty of signing a search list imposed on the search! witnesses by Section 103, Clause (2), Criminal P.C. can be regarded as an independent duty which does not come within the meaning of the word "assistance" used in Section 187, Penal Code.

In my opinion, the persons who have become bound by an order in writing issued by the officer concerned under the last part of Clause (1) of Section 103 to become search witnesses, are also under; the obligation to sign the search list that may be prepared and if they refuse to do so they are guilty of refusing to render assistance within the meaning of Section 187, Penal Code.

If in the present case the Excise Sub-Inspector had issued an order in writing I think the search witnesses by their refusal to sign the search list would have committed an offence u/s 187, Penal Code. In taking this view I regret I have to differ with great respect from my learned brothers Varma and Manohar Lall JJw

In the result however I agree that the reference should be accepted and the accused acquitted.