The provisions of Section 100 Cr. P. C. relating to search of a closed place and Section 100(7) Cr. P. C., which requires the delivery of a copy of the search list to the person searched, do not apply to the search of a person on a public road.

( 1 ) THIS revision aries out of the judgment and order dated 13. 8. 1982 passed by the learned III Additional Sessions Judge, Varanasi in Criminal Appeal No. 106 of 1982 releasing the applicant on probation of two years and on furnishing persunal bond of Rs. 2000/- with two sureties for keeping good behaviour. The said appeal was preferred against the judgment and order dated 18. 3. 1982 passed by the learned VII Munsif Magistrate, Varanasi in case No. 465 of 1982.

( 2 ) LEARNED counsel has submitted that in this case the Investigating Officer was not examined, sanction was granted without application of mind, no copy of the recovery memo was supplied to the accused under Section 100 (7) Cr. P. C. and no respectable witness was called for during search and seizure.

( 3 ) AGAINST that learned A. G. A has referred a case of Baboo Lal Sahu v. State of Orissa wherein it has been held that mere non examination of the Investigating Officer would not automatically vitiate the prosecution case. The accused has to establish that non examination of the said witness caused prejudice to the accused and onus to establish such prejudice lies on the accused. It has becn submitted that the Investigating Officer would have thrown proper light with regard to the recovery of the articles from the accused. This argument has no substance as it is not the prosecution case that the Investigating Officer was present to the spot.

( 4 ) WITH regard to the according to sanction to the prosecution learned Counsel has submitted that there was no application of mind of the sanctioning authority in this regard. Learned Additional Sessions Judge while considering the matter has gone through the evidence of the concerned witnesses in this connection. The document itself shows that the recovered country made pistol and live cartridges were produced before the District Magistrate and was returned in due course. After considering the evidence learned Sessions Judge found that the sanction was valid. Nothing has been submitted in this regard to hold a different conclusion.

( 5 ) WITH regard to the non supply of the copy of the seizure list and for non examination of respectable witness, learned counsel for the revisionist applicant has referred a decision reported in 1987 Cr. L. J. 15392 wherein it has been held that when no effort was made by the officer to call upon the search witnesses when independent and respectable persons were easily available in the locality the accused is entitled to the benefit of doubt due to non compliance of the provisions of section 100 (4), Cr. P. C. This decision is not applicable in the instant case as no search of the house of the accused was made or that offensive articles were recovered from inside the house. In fact, section 100, Cr. P. C. in its entirety was macted for the purpose of holding search of a closed place. The caption of section 100 Cr. P. C. appears as persons in charge of closed place to allow search. In Mahadeo v. State of U. P. it was held that provisions of this section apply only when search is made under a warrant and not otherwise. In a decision reported in 1963 (2) Cr. L. J. 694 (S. C.)4 it was held that though vehicle is inchided in the definition of place in section 2 (p) of the Code a motor car is not a place within the meaning of section 100 Cr. P. C. So the provisions reating to search contained, in section 100 Cr. P. C. has therefore no application. For these reasons in the case reported in A. I. R. 1933 Nagpur 995 it was held that the officer who intends to search a person cannot issue an order in writing to any inhabitant of the locality and hence the presence of two respectable persons is not necessary. It has also been held in Supreme Court case reported in A. I. R. 1956, S. C. 4116 that sub-section 4 applies when a search is to be made of a place it does not apply to the search of a person.

( 6 ) SECTION 100 (7) Cr. P. C. provides that when any person is searched under sub-sect