1. This petition is directed against the order dated 28-4-1982 passed by the Chief Judicial Magistrate, Shimoga, in C.C. No. 55 of 1982 directing the police to seize and produce the articles in question before him.
2. Brief facts of the case are that the respondent herein filed a private complaint under S. 200 Cr.P.C., before the Magistrate alleging that the petitioners herein have committed offences under sections 451, 448, 380 and 352 read with S. 34 I.P.C. and prayed that action may be taken against them. That complaint was filed on 21-4-1982. As could be made out from the proceedings, the complaint also filed I.A. No. I purported to be under S. 100 Cr.P.C., on the same day praying for issue of arrest warrant for search and seizure of the articles as listed in the application. On that day at the instance of the learned counsel for the complainant the case was adjourned to 22-4-1982, on which day the Magistrate recorded the sworn statements of the complainant and his two witnesses, who were present then, as P.Ws. 1 to 3. Thereafter he came to the conclusion that offences under Sections 451 and 380 read with S. 34 I.P.C. are disclosed against A-1 and A-2 and accordingly took cognizance of the said offences against them and ordered registration of a case for the aforesaid offences against both of them and ordered issue of summons, if process fee is paid, returnable by 12-5-1982. He also passed an order on that day issuing a search warrant under S. 94 Cr.P.C., to the C.P.I., Shimoga City, for making search and production of the properties in question by 24-4-1982. On 28-4-1982 the learned Advocate for the complainant also filed an application praying for direction to the C.P.I. to seize the articles mentioned in the application and produce the same before the court. The learned Magistrate after hearing the learned counsel for the complainant and after perusing the report of the C.P.I., in returning the search warrant, directed to seize and produced the articles in question before the court by the next date of hearing. It is the legality and correctness of the said order that is being challenged by the accused in this revision petition.
3. When the matter came up for hearing, the learned counsel for the respondent-complainant took an objection with regard to the maintainability of the petition. In other words, what he contended was that the accused are government servants and this petition has been filed on behalf of them by the State Public Prosecutor, which according to him is opposed to S. 24 Cr.P.C. He also submitted that such a thing should not be allowed and the 'culprits' should not be assisted by the State exchequer and this would be a bad precedent if the State Public Prosecutor is allowed to appear in the case. Sri K. H. N. Kuranga, learned High Court Government Pleader, submitted that they have been authorised by the Government to appear and file the aforesaid petition.
4. It may not be necessary at this stage to go into the maintainability of the case as the entire matter is seized by this court under its revisional jurisdiction and as the impugned order suffers from illegal infirmity, this petition could be disposed of on that score itself leaving open the contention of maintainability which has to be decided in appropriate proceedings.
5. As already stated, the private complaint is filed under S. 200 Cr.P.C. against the accused alleging that they have committed the aforesaid offences. The earned Magistrate did not take cognizance of the offence on the day when he received the complaint. On the other hand, he adjourned the case to the next date of hearing, i.e., 22-4-1982 on which day he examined the complainant and two witnesses and thereafter came to the conclusion that offences under sections 451 and 380 read with S. 34 I.P.C., are disclosed against the accused and therefore took cognizance of the said offences against them and ordered registration of a case against them for the aforesaid offences and accordingly issued summons returnable by 12-5-1982. To say the least this procedure is most illegal and arbitrary. Further, thereafter he issued a search warrant under S. 94 Cr.P.C., directing the C.P.I., to seize the article mentioned in the application and produce the same before the court. What is challenged before this court is only that portion of the order made by the Magistrate under S. 94 Cr.P.C.
6. A perusal of the impugned order clearly shows that it is again not in conformity with the mandatory provisions of law as laid down under S. 94(2) Cr.P.C. The learned Magistrate while considering the application has stated that he heard the Advocate for the complainant, perused the report of the C.P.I., but again directed the C.P.I. to seize and produce the articles in question before the court on the next date of hearing. S. 94 Cr.P.C., contemplates search of a place suspected to contain stolen property, forged documents etc. It empowers the District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class, if upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stole property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place may by warrant authorise any police officer above the rank of a constable (a) to enter, with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any property, or articles therein found which he reasonably suspects to be stolen property or objectionable articles to which the section applies and (d) to convey such property or article before a Magistrate ...... etc. A perusal of the impugned order does not disclose that he has reason to believe that any place is used for the deposit or sale of stolen property as contemplated in the said section. Apart from saying that he heard the learned counsel for the complainant and perused the report of the C.P.I., there is absolutely no indication whether in fact he has applied his mind to the relevant facts narrated in the application and whether it is a fit case wherein he could pass an order under S. 94 Cr.P.C. This is much more so in view of the fact that if upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property or for the deposit, sale or production of any objectionable article is deposited in any place etc., he could issue the search warrant. Even at the cost of repetition it is to be stated here that the impugned order is absolutely silent with regard to this aspect of the matter and therefore what follows is that impugned order suffers from vagueness and it is not at all a speaking order. Hence it cannot be sustained in law and therefore it is liable to be set aside.
7. As the entire proceedings are before the trial court, and as the initiation of proceedings, viz., after examination of the witnesses taking of the cognizance itself is illegal, the entire proceedings starting from the stage of examination of the complainant and his witnesses also cannot be sustained. It is needless to say that when complaint is presented under S. 200 Cr.P.C., it is incumbent upon the Magistrate to have considered whether it is a fit case to take cognizance of the offences as contemplated under S. 190 Cr.P.C. and if he thinks to take cognizance then he ought to take cognizance and thereafter to examine the complainant and witness, present if any, and thereafter to issue process as contemplated under law. In the case on hand without taking cognizance the Magistrate has straightway proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that this is a fit case to take cognizance of the offences against the accused, which is opposed to the mandatory provisions of law. Hence issuing of process to the accused is also liable to be set aside.
8. At this stage Sri Kuranga submitted that the accused have acted in the discharge of their official duty as government servants and therefore there is prohibition under S. 196 of the Karnataka Land Revenue Act and also under S. 197 Cr.P.C., in which even prior permission of the government is necessary and hence no prosecution lies against the public servants in respect of the acts done in good faith. At this stage this court is not expressing any opinion in this respect inasmuch as this is a matter to be agitated by the accused at the appropriate time before the appropriate court.
9. In the result, for the reasons stated above, this petition is allowed and the impugned orders dated 22-4-1982 and 28-4-1982 are set aside and the matter is remanded to the trial court with a direction to follow the procedure according to law in the light of the observations made above.
10. Petition allowed.