The Indian Penal Code, 1860 - Section 120B, 406 and 420 - The Code
of Criminal Procedure, 1973 - Section 93 - When search-warrant may be issued -
When the law requires the sanction of Magistrate before the issue of a search
warrant, it means that the Magistrate should apply its mind to the facts. This
fact should be discernible from the order passed. It can be argued that the
provision does not contemplate recording of detailed reasons prior to the
issuance of an order in view of the urgency of the situation. However, in a
case of instant nature, wherein allegations are levelled against the officer
bearers of a club for wrongly inducting a member against the provisions of the
bye-laws, the learned Magistrate ought to have applied her mind and should have
formed an opinion upon the materials placed before her. The "reasons to
believe" which weighed in the mind of the Court to take such a drastic
step should have been reflected in the order.
The Code of Criminal Procedure, 1973 - Section 93 - When
search-warrant may be issued - As is evident from the wording of the section,
it arms the jurisdictional Magistrate with very wide powers. Issuance of a
search warrant is a very drastic step with serious consequences and it cannot
be gainsaid that such drastic powers should not be exercised without fully
appreciating the gravity of the step. It is for that reason, the words
"reason to believe" is incorporated in the said section. This
function being judicial, it necessarily follows that the Magistrate has to
apply his mind judicially.
It is evident from the provision that
clause (a) of sub- Section (1) requires, as a condition precedent, to the issue
of a search warrant, that the court must have reason to believe that the
person, against whom the search warrant is issued, is likely not to produce the
document or thing in his possession as required by a summons or order under
Section 91 or a requisition under Section 92(1) of the Code, served on him, or
that he is not likely to produce it, should such summons or order or
requisition be served. No such situation had arisen in the instant case. It
does not appear from the order that the petitioners were called upon to produce
the document and they had refused. Section 93(1)(b) comprehends a situation
where a search warrant may be issued to procure a document or thing not known
to the court to be in the possession of any person. In other words, a general
search warrant may be issued to procure the document or thing and it can be
recovered from any person who may be ultimately found in possession of it if it
was not known to the court that the person from whose possession it was found,
was in possession of it. The said provision has no application as it is evident
from the application itself that the document was in the possession of the
relevant office bearer of the Tennis Club. Under clause (c), a search warrant
can be issued where the court considers that the purposes of any enquiry, trial
or other proceeding under this Code will be served by a general search or
inspection. A Magistrate must, under this provision, apply her mind to the
question whether the purposes of any enquiry, trial or other proceeding under
the Code will be served by a general search, and, unless there are materials
before her, connecting the person against whom the warrant is applied for with
the offences alleged, upon which it can come to an independent decision on the
point, it has no power to issue a search warrant. I have no doubt in my mind
that none of the situations contemplated in clauses (a) to (c) of Section 93(1)
had arisen in the instant case.
PRESENT THE HONOURABLE
MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 15TH DAY OF
MARCH 2019 / 24TH PHALGUNA, 1940
Crl.MC.No. 8672 of 2018
C.M.P.NO.3740/2018 IN CMP
3647/2018 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM
PETITIONERS/ACCUSED NOS.1 TO 6:
K.P VIJAYA MOHAN AND 5 OTHERS
BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SMT.A.MEGHA SRI.JELSON
J.EDAMPADAM
RESPONDENTS/COMPLAINANT & STATE:
1. N. JAYA KUMAR
2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM (SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION).
R2 BY ADV. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVERNMENT PLEADER R2 BY
SMT. K.SHEEBA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.03.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
The petitioners herein are the principal
officer bearers of the Trivandrum Tennis Club, a society registered under the
Travancore Cochin Literary Scientific and Charitable Societies Registration
Act, 1955. They have invoked the inherent jurisdiction of this Court to quash
order dated 6.12.2018 passed by the learned Chief Judicial Magistrate,
Trivandrum in C.M.P. No.3740 of 2018 in CM.P. No.3647 of 2018.
2. It appears that a
complaint was lodged by the 1st respondent under Section 190 of the Cr.P.C. before the learned Magistrate
with a prayer to take cognizance of the offence under Sections 406, 420 and
120B of the IPC. Along with the complaint, an application under Section 93 of
the Cr.P.C. was filed for issuance of a search warrant.
3. The complaint as
well as the petition are seen filed on 1.12.2018.
4. The allegation in
the complaint is that the petitioners, being the President and other office
bearers of the Trivandrum Tennis Club, in violation to the mandate and
direction of law, and against the provisions of the bye-laws, admitted a
certain S.Mahesh Kumar as a member of the Tennis Club and committed the offence.
5. It does not appear
from the impugned order that cognizance of the offence was taken by the learned
Magistrate. By a laconic order dated 6.12.2018, the application was allowed.
The order is extracted below for easy reference.
“(1) Petition praying to issue search
warrant.
(2) Heard. Petition allowed.
Permission granted to conduct search in the
office of Trivandrum Tennis Club, Kowdiar for seizing the items mentioned in
the petition in accordance with law. ………………...”
6. The learned counsel
appearing for the petitioners submitted that the issuance of a search warrant
is a judicial function and the learned Magistrate was expected to give reasons
which persuaded him to exercise his discretion to allow the application and order
the search and seizure of records such as Minutes Book, Membership lists,
ledger accounts, inward registers etc. pertaining to several years. According
to the learned counsel, the words “reason to believe” coupled with other words
in the section contemplate an objective determination based on application of
mind and deliberation as opposed to a purely subjective consideration. He would
urge that the learned Magistrate without even taking cognizance of the offence
and without ascertaining whether such a drastic action was contemplated in the
facts of the instant case, has casually allowed the application. He would
contend that none of the conditions under which a search warrant could be
issued as laid down in Section 93 of the Cr.P.C. was made out in the instant
case.
7. The learned counsel
appearing for the 2nd respondent, on the other hand, submitted that the learned
Magistrate has exercised her discretion in a proper manner and no interference
is warranted. According to the learned counsel, it is perfectly lawful for a Magistrate
to issue a search warrant when it considers the production of anything necessary
for the purposes of any enquiry under the Code. He would contend that it is not
incumbent for the learned Magistrate to wait until the evidence of prosecution
has been recorded.
8. A brief reference to
Section 93 (1) would be profitable to appreciate the contentions:
“Section 93 - When search-warrant may be issued
(1) (a) Where any Court has reason to believe that a person to
whom a summons or order under section 91 or a requisition under sub-section (1)
of section 92 has been, or might be, addressed, will not or would not produce
the document or thing as required by such summons or requisition, or
(b) where such document or thing is not known to the Court to be
in the possession of any person, or
(c) where the Court considers that the purposes of any inquiry,
trial or other proceeding under this Code will be served by a general search or
inspection, it may issue a search-warrant; and the person to whom such warrant
is directed, may search or inspect in accordance therewith and the provisions
hereinafter contained.
(2) xxxx xxxx
(3) xxxx xxxx”
9. As is evident
from the wording of the section, it arms the jurisdictional Magistrate with
very wide powers. Issuance of a search warrant is a very drastic step with
serious consequences and it cannot be gainsaid that such drastic powers should
not be exercised without fully appreciating the gravity of the step. It is for
that reason, the words "reason to believe" is incorporated in the
said section. This function being judicial, it necessarily follows that the
Magistrate has to apply his mind judicially.
10. It is evident from
the provision that clause (a) of sub- Section (1) requires, as a condition precedent, to the
issue of a search warrant, that the court must have reason to believe that the
person, against whom the search warrant is issued, is likely not to produce the
document or thing in his possession as required by a summons or order under
Section 91 or a requisition under Section 92(1) of the Code, served on him, or
that he is not likely to produce it, should such summons or order or
requisition be served. No such situation had arisen in the instant case. It
does not appear from the order that the petitioners were called upon to produce
the document and they had refused. Section 93(1)(b) comprehends a situation where a search warrant
may be issued to procure a document or thing not known to the court to be in
the possession of any person. In other words, a general search warrant may be
issued to procure the document or thing and it can be recovered from any person
who may be ultimately found in possession of it if it was not known to the
court that the person from whose possession it was found, was in possession of
it. The said provision has no application as it is evident from the application
itself that the document was in the possession of the relevant office bearer of
the Tennis Club. Under clause (c), a search warrant can be issued where the
court considers that the purposes of any enquiry, trial or other proceeding
under this Code will be served by a general search or inspection. A Magistrate
must, under this provision, apply her mind to the question whether the purposes
of any enquiry, trial or other proceeding under the Code will be served by a general
search, and, unless there are materials before her, connecting the person
against whom the warrant is applied for with the offences alleged, upon which
it can come to an independent decision on the point, it has no power to issue a
search warrant. I have no doubt in my mind that none of the situations
contemplated in clauses (a) to (c) of Section 93(1) had arisen in the instant
case.
11. There is yet
another aspect of the matter. When the law requires the sanction of Magistrate
before the issue of a search warrant, it means that the Magistrate should apply
its mind to the facts. This fact should be discernible from the order passed.
It can be argued that the provision does not contemplate recording of detailed reasons
prior to the issuance of an order in view of the urgency of the situation.
However, in a case of instant nature, wherein allegations are levelled against
the officer bearers of a club for wrongly inducting a member against the
provisions of the bye-laws, the learned Magistrate ought to have applied her
mind and should have formed an opinion upon the materials placed before her.
The “reasons to believe” which weighed in the mind of the Court to take such a
drastic step should have been reflected in the order.
12. In Assistant
Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v.
Shukla and Brothers [(2010)4 SCC 785], it was held thus by the Supreme Court:
“Reasons are the soul of orders. Non-recording of reasons could
lead to dual infirmities; firstly, it may cause prejudice to the affected party
and secondly, more particularly, hamper the proper administration of justice.
These principles are not only applicable to administrative or executive
actions, but they apply with equal force and, in fact, with a greater degree of
precision to judicial pronouncements. A judgment without reasons causes
prejudice to the person against whom it is pronounced, as that litigant is unable
to know the ground which weighed with the Court in rejecting his claim and also
causes impediments in his taking adequate and appropriate grounds before the
higher Court in the event of challenge to that judgment.”
13. For the aforementioned
reasons, I hold that the impugned order passed by the learned Magistrate cannot
be sustained. The impugned order is set aside. The documents, which have been
seized by the Commissioner from the Trivandrum Tennis Club as per the impugned
order dated 6.12.2018, shall forthwith be released to the petitioners after
obtaining proper acknowledgement.
This petition will stand allowed.