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1. The sole appellant in this appeal was committed to the Court of Sessions by Shri S.N. De, Judicial Magistrate, 1st Class, Monghyr, to stand his trial on charges under Sections 353, 307 and 323 of the Indian Penal Code. The learned Sessions Judge, Monghyr, by his judgment and order under appeal has acquitted the appellant of the charge under Section 307. Penal Code, but has convicted him under Section 353, Penal Code, and sentenced him to undergo rigorous imprisonment for one year. In the Sessions Court in place of the charge under Section 323, the! charge under Section 332 of the Indian Penal Code was framed and the appellant has been convicted for that charge also and has been sentenced to undergo rigorous imprisonment for two years. The sentences have been directed to run concurrently.

11. In support of this argument, learned counsel for the appellant has placed reliance upon the case of Gopi Mahto v. Emperor, AIR 1932 Pat 66. Ram Parves Ahir v. Emperor, AIR 1944 Pat 228 and the Supreme Court case referred to above, namely, AIR 1960 SC 210. In Gopi Mahto's case, the Sub-Inspector of Police was making investigation into the case of theft of a bicycle and during investigation he received information that the stolen bicycle was concealed in the house of one of the petitioners of that case, Avadh Kurmi. He intimated to the petitioners that he would search their house. The petitioners told him not to enter the house and when he insisted upon entering it, they pushed him back along with the constable, who was with him. In close proximity with this incident what happened was that petitioner Avadh Kurmi then went inside the house, took a bicycle and went away with it by another door. The Sub-Inspector and the constable, who was with him, ran to arrest Avadh Kurmi, but they were prevented by petitioners Gopi and Mahabir from going in that direction. The learned Additional Sessions Judge held that the procedure adopted by the Sub-Inspector for the search of the house was not strictly legal as he had failed to comply with the requirements of Section 165 of the Code of Criminal Procedure in the matter of making a record and sending a copy of it to the Magistrate; hence the petitioners were not guilty of an offence under Section 353 of the Penal Code. He, however, convicted them under Section 352 of the Penal Code. In that connection Dhavle, J. said:

In that case, admittedly, no reason was recorded before attempt to search was made and in that view of the matter the conviction under section 353 of the Penal Code of the petitioner was set aside.

14. In absence of any evidence adduced on behalf of the prosecution I am inclined to hold that P. W. 1 did not record the reasons for making the search of the house of the appellant and did not record in writing the articles for which he wanted to make the search. That being so, it must be held that the action of the searching party in going to the house of the appellant for making the search was not legal. The subsequent fact that no incriminating article was recovered from the house of the appellant cannot lead to the conclusion that the Sub-Inspector of Police (P. W. 1) could not have reasonable ground for believing that the search of the appellant was necessary. But that does show the necessity of compliance with the requirement of making a record of such reasons before a police officer goes to search the house of a citizen. If the law requires him to fulfil certain conditions before exercise of his power in order to safeguard against mala fide, whimsical and arbitrary searches of the property and the house of a citizen, then the law must be complied with, otherwise it will depend upon the sweet-will of a particular police officer to go and make a search of any premises of any citizen and it is for the protection against that kind of invasion 'f the liberty of the people that a further safeguard has been provided by the Legislature in Sub-section (5) of Section 165 for bringing the matter to the knowledge of the nearest Magistrate, who may apply his mind and see as to whether the police officer had justification to proceed to make a search of any premises in exercise of the powers under section 165 of the Code of Criminal Procedure.

15. It is, therefore, obvious that the conviction of the appellant under sections 332 and 353 of the Penal Code is illegal and unjustified and it must be set aside. But an argument in the alternative was advanced on behalf of the State to alter the conviction of the appellant from Section 332 to one under section 323, Penal Code, for causing simple hurt to havildar (P. W. 3). In my opinion, however, on the facts and circumstances of this case, this argument also cannot be accepted.

16. In the Sessions Court, the appellant was charged under section 358 of the Penal Code for using "criminal force to Narain Prasad Singh, a public servant, to wit, officer-in-charge, Jamalpur P. S. by attempting to strike him with Chhura on his neck with intent to deter him from discharging his duty as such public servant, that is making search of the house of the appellant in connection with a theft case. Firstly, I am inclined to take the view in connection with the charge under section 353, Penal Code, that when the charge under section 307 for attempting to strike P. W. 1 with a chhura on his neck in an attempt to kill him has failed, then the story of use of force by hurling chhura on his neck has also got to fail. But even assuming, as was contended by Mr. Sarwar Ali, that the prosecution story that the appellant hurled chhura and thereby showed criminal force to Narain Prasad Singh be believed, it is obvious that merely show of force will not be an offence on the facts and in the circumstances of this case, much less an offence under section 353, Penal Code, when I have found that P. W. 1 had not gone to the house of the appellant to discharge his duty as a public servant after fulfilling the requirements of law.