Saturday, 6 April 2019

Precaution to be taken by magistrate prior to issuance of search warrant

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.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE RAJA VIJAYARAGHAVAN V

Crl.MC.No. 8672 of 2018

 K.P VIJAYA MOHAN, Vs  N. JAYA KUMAR,

Dated: 15TH DAY OF MARCH 2019 


ORDER
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.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE

Print Page

No comments:

Post a comment