# GOPI & ORS v. STATE OF U.P

- **Citation:** [1970] 3 S.C.R. 490
- **Court:** Supreme Court of India
- **Decided:** 1970-02-03
- **Case number:** Criminal Appeal No. 2195 of 1964
- **Bench:** M. H!Dayatullah, A. N. Ray, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopi-ors-v-state-of-u-p-5050
- **Pages:** 5

## Headnote

B
Code of Criminal Procedure (Act 5 of 1898), ss. 165 & 166(3)-
Power of officer of a police station to conduct search of premises located
in the jurisdiction of another
police
station-Recording of reasons of
search-Presurnption in favour of official acts under s. 114 Evidence Act,
1872-Bona tides of search-Right of private defence against police party.
On the basis of a First Information Report regarding loss df a buffalo
lodged at police station, Chhainsa, the Sub-Inspector of that police station
sought to search the house of the appellants situated in the jurisdiction o'(
police station, Dankaur.
The appellants and several others resisted
the
search and caused injuries to the police party, for which they were prosecuted under varioLJ5 sections of the Indian Penal Code.
The appellants
along \Vith certain others were convicted by the trial court and their appeals
were disallowed by the High Court.
By special
leave they appealed to
this Court. contending : (i) that the officer of a police station cannot
carry out a search in the jurisdiction of another police. station without the
permission o'f the Station House Officer of that station; in the present case
the reason given by the Sub-Inspector for not taking such permission,
nan1ely, that the local police was in league with the appeUants did not
satisfy the terms of s. 166(3) of the Code of Criminal Procedure; (ii)
that the search '"'as. also illegal for the reason that the Sub-Inspector be·
fore attempting 1he search did not record his
reason5
as required by
ss. 165 & 166 of t'e Code; (iii) that being illegal the search was not bona
fide: (iv) that thie appellants \Vere entitled to the right of private de'fence
since the~ thought that the raiding party were decoits dre5sed as policemen.
·HELD : (i} In the case of stolen cattle, time is of the essence, becau5e once the animal is removed
and mixed up with others, it is very
difficult to spot it in the big herds common in these places. 'fherefore if
the police officer had reason to believe that the police officers at Dankaur
"·ould take their own time because they were mixed up with the accused
party. he had full jurisdiction in taking recourse to sub-s. (3) of s. 166
and to carry out the seHrch himself. !493 G-I-IJ
(ii) No questions y;ere put to the Sub-Inspector
to elicit from him
\\·hether the ·reasons 'for the search were recorded or not.
Regard being
had to the regularity of official acts it must be presumed that the SubJnspector must haye taken the precaution to record his reasons. [494 A]
(iii) Jn the circumstances of the case the search was legal and bona
fide. [494 Bl
c
D
E
F
G
(iv) The accused \i.:ere in'tormed by the Sub-Inspector that it was the
police party \vhich had come and they had no ·reason to attack the police
party either as dacoits or in self-defence in any other form. [494 CJ
ff

## Text

490
GOPI & ORS.
v.
STATE OF U.P.
February 3, 1970
A
[M. H!DAYATULLAH, C.J., A. N. RAY AND I. D. DuA, JJ.]
B
Code of Criminal Procedure (Act 5 of 1898), ss. 165 & 166(3)-
Power of officer of a police station to conduct search of premises located
in the jurisdiction of another
police
station-Recording of reasons of
search-Presurnption in favour of official acts under s. 114 Evidence Act,
1872-Bona tides of search-Right of private defence against police party.
On the basis of a First Information Report regarding loss df a buffalo
lodged at police station, Chhainsa, the Sub-Inspector of that police station
sought to search the house of the appellants situated in the jurisdiction o'(
police station, Dankaur.
The appellants and several others resisted
the
search and caused injuries to the police party, for which they were prosecuted under varioLJ5 sections of the Indian Penal Code.
The appellants
along \Vith certain others were convicted by the trial court and their appeals
were disallowed by the High Court.
By special
leave they appealed to
this Court. contending : (i) that the officer of a police station cannot
carry out a search in the jurisdiction of another police. station without the
permission o'f the Station House Officer of that station; in the present case
the reason given by the Sub-Inspector for not taking such permission,
nan1ely, that the local police was in league with the appeUants did not
satisfy the terms of s. 166(3) of the Code of Criminal Procedure; (ii)
that the search '"'as. also illegal for the reason that the Sub-Inspector be·
fore attempting 1he search did not record his
reason5
as required by
ss. 165 & 166 of t'e Code; (iii) that being illegal the search was not bona
fide: (iv) that thie appellants \Vere entitled to the right of private de'fence
since the~ thought that the raiding party were decoits dre5sed as policemen.
·HELD : (i} In the case of stolen cattle, time is of the essence, becau5e once the animal is removed
and mixed up with others, it is very
difficult to spot it in the big herds common in these places. 'fherefore if
the police officer had reason to believe that the police officers at Dankaur
"·ould take their own time because they were mixed up with the accused
party. he had full jurisdiction in taking recourse to sub-s. (3) of s. 166
and to carry out the seHrch himself. !493 G-I-IJ
(ii) No questions y;ere put to the Sub-Inspector
to elicit from him
\\·hether the ·reasons 'for the search were recorded or not.
Regard being
had to the regularity of official acts it must be presumed that the SubJnspector must haye taken the precaution to record his reasons. [494 A]
(iii) Jn the circumstances of the case the search was legal and bona
fide. [494 Bl
c
D
E
F
G
(iv) The accused \i.:ere in'tormed by the Sub-Inspector that it was the
police party \vhich had come and they had no ·reason to attack the police
party either as dacoits or in self-defence in any other form. [494 CJ
ff
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No
159 of 1967.
GOP! v. U.P. STATE (Hidayatullah, C.J.)
491
A
Appeal by special leave from the judgment and order dated
April 28, 1967 of the Allahabad High Court in Criminal Appeal
No. 2195 of 1964.
B
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G
H
Anil Kumar Gupta, R. A. Gupta and Uma Datta, for the
appellant.
0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C.J. The appellants are five in number who
were pros~cuted originally with 11 others under diverse sections
of the Indian Penal Code which included sections 147 and 148
of the Indian Penal Code and ss. 333 and 353 read with s. 149
of the Indian Penal Code.
Of the original 16 accused in the case,
11 were acquitted in the Court ct Session. The High Court, on
appeal, confirmed their convictions with some modifications and
reduced the sentences passed on them.
As a result of the High
Court's judgment, one of the appellants Gopi stands convicted .
under s. 326 of the Indian Penal Code with a sentence of six
months' rigorous imprisonment and under s. 148 of the Indian
Penal Code with a like sentence, the two sentences of imprisonment to run concurrently.
Others are convicted only under s. 147
of the Indian Penal Code and have been sentenced to imprisonment already undergone by them which we are told was in the
neighbourhood of two weeks.
They now appeal by special leave
against their conviction and sentences.
The facts of the case are as follows.
In November 1963 a
she-buffalo
belonging to one Rajbir cl village Chbainsa, police
station Chhainsa in the district of Gurgaon (then a part of Punjab
and now a part of Haryana) was stolen.
Rajbir's suspicion was
that the appellants Gopi and Munshi had stolen the buffalo and
that they were keeping it in village Gunpara, police station Dankaur
in Bulandshahr district in Uttar Pradesh.
There are certain allegations that Gopi and Munshi demanded a sum of Rs. 200 for
the return of the buffalo, that the amount was paid but the buffalo
was not returned.
We are not concerned with the truth cf this
statement.
A report of theft of buffalo was lodged at police station
Chha1nsa on November 26, 1963. The report was sent to SubInspector Kesar Singh (P.W. 1) wno was then at another village
and he proceeded in the company of three constables and some
other villagers to Gunpara.
From the village he took with him
two other persons Rajey and Chander.
The police party was
armed with rifles. a revolver and /athis.
They reached the house
o.f Gopi and Munshi at about 11-30 p.m. and found them sleeping
in front of their house.
Gopi and Munshi were woken up by the
police and were informed that the police party had come to search
492
SUPREME COURT REPORTS
[1970) 3 S.C.R.
for the buffalo.
The prosecution case is that Gopi and Munshi
thereupon raised a hue and cry that the police party had arrived
and on that the ·appellants and some other persons violently attacked
the police party causing simple injuries to Kesar Singh, Mohar
Singh and Sri Ram of the police force and grievous injury to
Jodhra Ram.
The injury to Jodhra Ram was caused with a farsa
on the head a:nd had fractured his skull.
Later, the police party,
when it was withdrawing, was again waylaid and the allegation is
that Kesar Singh was wrongfully confined at Naurangpur.
He was
then rescued by Mulaim Singh, a constable cf police station Dankaur and Kesar Singh th<in. went to Gunpara where he made a
report to the police station officer Dankaur who had by that time
returned.
It may be mentioned that on behalf of the appellants
a report was also lodged at police station Dankaur at 4 a.m. on
the night of the occurrence, complaining that a dacoity was
attempted to be· committed at the house of Gopi and Munshi by
some pers0;ns who were dressed in police uniform.
Investigation
then followed and the appellants with 11 others who have since
been acquitted were prosecuted.
The High Court considered whether the action of Kesar Singh
in conducting the search outside the limits of his police station
house was bona fide or under colour of office.
It gave a finding
that it was ,not bona fide because Kesar Singh could have easily
asked the police station house officer of Dankaur to conduct the
search under s. 166(1) of the Code of Criminal Procedure.
His
explanation that the police at Dankaur were mixed up with the
appellants'
party was considered a lame excuse.
However, the
High Court felt that the action of the appellants was criminal
because they knew that it was a police party.
In this appeal, the appellants had earlier u,ndertaken to this
Court that they would argue a pure point of law and that the
record therefore' need not be printed.
As a result, there is i:io
evidence before us.
All that we have is the copy of the judgment
of the High Court and the special leave petition with the grounds
on which this appeal is to be argued.
The only question of law
argued on behalf of the appellants is that the search was illegal and
there.fore the appellants had every right to resist it and further that
they resisted the search party in the exercise of the right o.f private
defence, thinking that the raiding party were decoits dressed in
police uniforms.
As to the knowledge of the appellants about the identity of the
raiding party, we have had the evidence of the witnesses read to
us.
It is quite clear from that evidence that the sub-inspector
Kesar Singh had communicated to Gopi ·and Munshi that this was
a raid by a police party who were out to search ·life premises for
A
B
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G
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A
B
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GOP! v. U.P STATE (Hidayatullah, C.J.)
493
the missing buffalo.
Therefore, the statement of the appellants
that they took the raiding party to be dacoits is not true and we
do not, therefore, believe it.
The argument, however, was raised that under s. i65, the
powers o,f search of station house officer are limited to the limits
of his police station and he cannot make a search within the jurisdiction of another police station house officer.
Reliance.-was placed
upon the provisions of s. 165 to establish this.
There-is no doubt
that that is the normal and ordinary provision <>f the Code but then
there is section 166 also to be read.
Under sub-s.1'-of that section
a police officer may invoke the assistance of a police station house
officer of another jurisdiction and ask him to <;!induct the search.
It is submitted that this is what the sub-inwector Kesar Singh
ought to have done.
The powers of the police station house officer, however, are not confined to this only,-oecause sub-s. 3 of the
same section gives the right and authg;ity to the police station
house officer to conduct search in the i11tisdiction of another police
station house officer if he has reasO!I" to believe that delay would
be occasioned by requiring the officer in charge ~ the other police
station to cause the search to bei'nade and as a result evidence of
the commission of the offen~-would be concealed or destroyed.
This is what the sub-inspector Kesar Singh seems to have done.
His explanation was that the police of Dankaur were mixed uo
with the accused who had stolen the buffalo and therefore he took
it upon himself to conduct the search and recover the buffalo. The
explanation in our opinion is believable because no police officer
would ordinarily go into another jurisdiction unless there are compelling reasons to do so.
A buffalo had been stolen a few weeks
before and nothing had been done to recover it. In these circumstances the sub-inspector Kesar Singh might well have believed
that unless he took some instant actjon, the buffalo would never
be found.
Therefore his action was with due care and attention
and cannot be said to be ma/a fide.
It was argued however that the sub-section is limited to avoidance of delay and there was no case made out here that there was
likelihood of delay if the police station house officer of Dankaur
had been inv:ted to conduct the search.
In our opinion in the
case of stolen cattle, tim~ is of the essence, because once the animal
is removed and mixed up with others, it is very difficult to spot it
in the big herds common in these places. Therefore if the police
officer had reason to believe that the police officers at Dankaur
would take their own time because· they were mixed up with the
accused party, he had full jurisdiction in taking recourse to sub-s.
(3) of s. 166 and to carry out the search himself.
It was contended before us that he ought to have recorded his
reasons in writing as required by s. 165 and also by s. 166. But
494
SUPREME COURT REPORTS
[ 1970] 3 S.C.R.
no question appears to have been put to the sub-inspector to elicit
from him whether the reasons were recorded or not. Regard being
had to the regularity of official acts, we are entitled to presume
that the sub-inspector must have taken the precaution to record
his reasons.
In any event, we cannot hold this against the prosecution, because there is no material on which we can proceed.' We
are there.fore satisfied that the search in this case was bona fide and
was conducted legally by Kesar Singh in another jurisdiction,
because he hacl reason to believe that evidence, namely, the
buffalo was likely to be lost if he did not take prompt action. The
accused were informed by him that it was the police party which
had come and they had no reason to attack the police party either
as dacoits or in self-defence in any other form. . The offence of
the appellants is therefore amply brought home to them.
We see
no reason to interfere.
The appeal fails and will be dismissed.
G.C.
Appeal diSmissed.
A
B
c