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M.P. Kaverappa Vs. D. Sankannayya Setty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberAppeal No. 153 of 1957
Judge
Reported inAIR1965Kant214; AIR1965Mys214; 1965CriLJ225; ILR1964KAR1046; (1964)2MysLJ300
ActsJudicial Officers' Protection Act - Sections 1; Police Act - Sections 43; Sea Customs Act; Indian Penal Code (IPC), 1860 - Sections 124A and 153A; Code of Criminal Procedure (CrPC) , 1973 - Sections 4(1)(1), 4(1)(L), 94, 96, 96(1), 155, 155(2) and 165
AppellantM.P. Kaverappa
RespondentD. Sankannayya Setty
Excerpt:
- indian succession act, 1925. section 2(h): [n. kumar,j] proof of will legal requirements duty of the court held, under the act, the will to be valid, should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. if these legal requirements are not found, in the eye of law there is no will at all. therefore, the first step is that if the documents produced before the court prima facie do not satisfy these legal requirements, the court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document. further, the second step is that when the legal heirs are disinherited, the court has to scrutinise the evidence with greater.....somanath iyer, j. (1) this is an appeal by the defendant who, at the relevant point of time, was a sub-inspector of police in the then state of coorg. when d.w. 1 the circle inspector of police at merecara acquired information that two persons named krishnan and kuttappa had printed and circulated a pamphlet containing matters falling within the purview of section 124a and section 153a of the penal code, it appeared according to his evidence to him that steps should be taken for the collection of evidence so that a prosecution may be commenced in respect of those offences. he applied on may 31, 1955 to the first class magistrate, mercara to investigate those offences since those offences being non-cognizable offences, such permission was necessary. it was on may 31, 1955, that the.....
Judgment:

Somanath Iyer, J.

(1) This is an appeal by the defendant who, at the relevant point of time, was a Sub-inspector of police in the then State of Coorg. When D.W. 1 the Circle Inspector of police at Merecara acquired information that two persons named Krishnan and Kuttappa had printed and circulated a pamphlet containing matters falling within the purview of section 124A and section 153A of the Penal Code, it appeared according to his evidence to him that steps should be taken for the collection of evidence so that a prosecution may be commenced in respect of those offences. He applied on May 31, 1955 to the First Class Magistrate, Mercara to investigate those offences since those offences being non-cognizable offences, such permission was necessary. It was on May 31, 1955, that the Magistrate accorded permission to investigate the offences which he presumably did under the provision of section 155(2) of the Code of Criminal procedure, and a case was registered as Crime No. 81of states1955, by the defendant who was in charge of the Police station at Mercara.

(2) On August 22, 1955, when D.W. 1, the Circle Inspector was transferred, the defendant was entrusted with the further investigation and on the same date, the Deputy Superintendent of Police forwarded a memo to the Police Station at Mercara by which he directed that immediate action should be taken to search certain houses and premises in connection with the investigation referred to above

That memo reads:

'MEMO.--There is reliable information that Literature and other documents wanted in Crime No. 81/55 of Mercara Station under Ss. 124-A, 153-A, I.P.C., which is now being investigated by the Mercara Police are likely to be found concealed in the house of persons mentioned below :--

1. B.N. Kuttappa, Aikola Village, Murnad.

2. B.D. Ganapathy, near the Kodagu Press.

3. Dr. B.K. Nanjundeswara, residing near the Brahmin Valley and also his dispensary in the town.

4. D.S. Deva Setty, his house in Mahadevapet and also in his estate in Bokeri. Immediate action should be taken to search the houses and premises of the above mentioned persons. Inspector M. Abdul Gaffar and Sub-Inspector K.B. Kunjappa of the Special Branch will assist in conducting the searches.'

(3) On receipt of this memo, the defendant made an application to the First Class Magistrate, Mercara, for the issue of a search warrant so that he may proceed to make a search which he was directed to make. On that application which was marked as Exhibit A. 1 (C) in the suit out of which this appeal arises, the Magistrate issued those search warrants on the same date on which they were applied for. The application presented by the defendant and the order made on that application by the Magistrate read as hereunder:

'Confidential.

From: The Sub-Inspector of Police, Mercara.

To

The Munsiff and First Class Magistrate, Mercara.

Sir,

There is valuable information that Literature and other documents wanted in Crime No. 81/55 of Mercara station under Ss. 124-A, 153-A, I.P.C., which is now being investigated are likely to be found concealed in the houses of the persons mentioned below:

1. B.N. Kuttappa, Bykola Village, Moornad.

2. B.D. Ganapathy, Mercara.

3. B.K. Nanjundeswara, Mercara and his dispensary.

4. D.S. Devasetty at Mercara and Bokkeri.

Therefore, I request the Munsiff and First Class Magistrate, Mercara to issue a search warrant to search the houses of the abovesaid persons to seize the documents et cetra noted above.

Yours faithfully,

Sd/- M.P.

Kaveriappa,

22-8-55

ORDER

Issue Search warrants for searching the houses of the persons mentioned above.

Sd/- M.B. Madappa.

22-8-55

Munsiff-Magistrate.'

Seal of the Court.

(4) Devasetty whose name appears in the application is the plaintiff's son.

(5) The search warrant authorising the search of Devasetty's house reads:

'2623

23-8(torn)

Warrant to search after information of a particular offence.

(Section 96 of the Code of Criminal Peocedure.)

Coorg District.

In the Court of the Munsiff & First Class Magistrate, Mercara.

Complainant: v. Accused:

The State 1. Kallat Krishnan.

2. B.N. Kuttappa.

To

Sri M.P. Kaveriappa,

Sub-Inspector of Police,

Merecara station.

Whereas information has been laid before me of the commission of an offence under sections 124-A and 153-A of the Indian Penal Code by the abovesaid accused persons by getting a pamphlet in English entitled 'An appeal to defend workers in Courts, to defend Trade Union Rights, to defend Civil Liberties against jungle law in Coorg,' and whereas it has been made to appear before me that certain literature and other documents concerned in that case are suspected to be in the house of Mr. D.S. Devasetty at Mercara and Boikery;

This is to authorise and request you to search for any documents or records concerned in the said case in the house of Mr. D.S. Devashetty at Mercara and Bakery (Ibbanivalavadi) and if found, to produce the same forthwith before this Court, returning this warrant with an endorsement certifying what you have done under it immediately upon its execution.

Given under my hand and the seal of this Court this 22nd day of August 1955.

Sd/- M.B. Madappa.

22-8-1955

Munsiff and First Class Magistrate.

Submitted to the Munsiff and First Class Magistrate, Mercara. The Houses of D.S. Devasetty were searched. Secured two printed pamphlets bearing the L.H.I.B. an appeal etc. They are sent herewith.

Sd/- M.P. Kaveriappa'.

(6) The search authorised by this search warrant was made on August 23, 1955. The defendant first went to what according to him was the house of Devasetty at Mercara at 10-30 A.M. During the search, an almirah and two boxes which were found locked were opened by force, on the plaintiff refusing to produce the keys of those receptacles. Exhibits A-1(g) and A-1(4) were the two mahazars made on that occasion. Then, the defendant went to the other house at Boikery. The plaintiff refused to accompany him to that place but Devasetty's son Keshava admittedly proceeded along with the defendant to that place. The defendant opened certain table drawers with the aid of false keys and seized certain pamphlets. Exhibit A-1(h) was the mahazar recording that search.

(7) The articles seized during the searches and the mahazars prepared on the occasion of the searches were all produced before the Magistrate on August 23, 1955.

(8) It is not necessary to advert to the further vicissitudes of the investigation made by the defendant. What we are concerned with in this appeal is a suit brought by the plaintiff for damages against the defendant, and, that suit out of which this appeal arises was instituted on November 12, 1955. The defendant was accused by the plaintiff of having committed trespass and mischief and therefore of having become liable to damages. The grounds on which that claim for damages rested were that the Magistrate issued the search warrant on invalid and insufficient grounds, that the search warrant was not issued in accordance with law, that it did not authorise the defendant to enter the plaintiff's house and that the breaking open of the locks of the suit cases, almirah and the table drawers was illegal and unjustifiable.

(9) The District Judge reached the conclusion that the defendant had committed an act of trespass and had therefore become liable in tort. He was of the view that the two houses which were searched by the defendant were houses belonging to the plaintiff and not to his son and that the search warrant issued by the Magistrate did not rest on sufficient grounds and materials and was, therefore, not one issued in accordance with law. He awarded to the plaintiff a sum of Rs. 3,000/- by way of damages.

(10) The defendant appeals.

(11) In this appeal, Mr. Government Pleader has subjected every one of the findings of the District Judge to more than one criticism. He made the further submission that the District Judge was not right in refusing the defendant the protection afforded by S. 1 of the Judicial Officers' Protection Act (Central Act XVIII of 1850) and S. 43 of the Police Act (Central Act V of 1861).

(12) The questions arising in this appeal are these:

(a) Whether the house searched by the defendant were not the houses of Devasetty and could not therefore have been searched by the defendant;

(b) Whether the search warrant issued by the Magistrate was an invalid search warrant issued in contravention of the provisions of S. 96 of the Code of Criminal Procedure;

(c) Whether the defendant exceeded his authority in making the searches or in breaking open the locks of the almirah, the table drawers and the suit cases;

(d) Whether the defendant is entitled to the protection of S. 1 of the Judicial Officers' Protection Act (Central Act XVIII of 1850) and S. 43 of the Police Act (Central Act V of 1861); and

(e) Whether the damages awarded to the plaintiff are excessive.

(13) On all these matters, the findings of the Distract Judge were in favour of the plaintiff, and, we were asked by the Mr. Government Pleader to say that those findings are unsupportable.

(14) I have no doubt in my mind that the impression in the mind of the District Judge that the houses searched by the defendant were not the premises whose search was authorised by the search warrant Exhibit A. 1(f) was an entirely unsupportable impression. It is seen from the judgment of the District Judge that he had in his mind an utterly inaccurate impression of the evidence touching that matter. In the first place, while the plaintiff in his plaint did not state that he was in exclusive occupation and possession of the two houses which were searched by the defendant, and all that he stated was that when the defendant made the search of the house at Mercara he was told by the plaintiff that he was the owner of the house and he was in occupation of it and that his son Devasetty was not there, he did not assert even in the course of his evidence that the two houses belonged to him and that Devasetty had no right to those houses or was not in possession thereof. On the contrary, he made very important and damaging admissions in his cross-examination. This is what he stated:

'My house is my ancestral house. The estate is my self-acquired property. My son Devasetty lives in my house. His wife lives in my house. My son lives in my house in Mercara. He also lives in the estate.' About what he stated to the defendant when he went to Mercara house for making the search, this is what the plaintiff said : 'I said that Devasetty was not at home, that he had gone to Bangalore and that the house is mine.'

(15) Notwithstanding the unmistakable admission made by the plaintiff that the house in Mercara was the ancestral house and that Devasetty was living in that house and that he was also living in the estate, the District Judge as can be seen from his judgment experienced unnecessary and unavailable doubts about the existence of the authority for the searches made by the defendant of these two houses. It will be seen from the judgment of the District Judge that the he was between two minds on the questions whether the houses which were searched were the family properties of the plaintiff and his son Devasetty or whether they were the exclusive properties of the plaintiff and were in his exclusive possession. The District Judge made many speculations on that matter. In paragraph 8 of his judgment, he addressed himself to the question whether the two houses which were searched by the defendant were the exclusive properties of the plaintiff. He attached great importance to the house at Mercara, the plaintiff and not Devasetty was the person present in the house, and, at one stage, he observed:

'I think on the evidence produced in this case the conclusion appears to be inevitable that neither ownership nor possession of these houses is proved to be with Devasetty when the defendant searched these two houses. The plaintiff in his evidence has stated that both houses belong to him and he has been in their possession.'

It is extremely surprising that the District Judge should have misread the evidence of the plaintiff in this way. It is not intelligible why and for what reason the District Judge did not refer to the clear admissions made by the plaintiff in his cross-examination that the Mercara house was an ancestral house and that Devasetty was living with him in the Mercara house and was also living in the house which was in the estate.

(16) Referring to the argument of the Government Pleader that the houses searched by the defendant were joint family properties and to the admission made by the plaintiff that the house in Marcher was an ancestral house, the District Judge proceeded to observe that that admission does not necessarily lead to the inference that the plaintiff and his son were members of a Hindu joint family. It is difficult to understand what else is the implication of the admission made by the plaintiff that the house was an ancestral house except that that house was the ancestral house not only of himself but also of Devasetty since the plaintiff did not state that he and Devasetty had at any point of time become divided from one another.

(17) The next mistake committed by the District Judge which should astonish anyone is that he thought that even if the plaintiff was in possession of the house as the manager of the Hindu joint family, his possession as manager is not the possession of the junior members of the family. It is manifest that this proposition of law enunciated by the District Judge should startle anyone.

(18) While there is thus abundant evidence which was given by the plaintiff himself from which the deduction was irresistible that the property in Mercara at least was ancestral property belonging to himself and to Devasetty and that quite apart from himself and to Devasetty and that quite apart from the character of the property, Devasetty was living with the plaintiff not only in the Mercara house but also in the house of the estate, there was other very trustworthy evidence which makes it abundantly clear that the defendant was acting fully within the scope of the authority conferred on him by the search warrants when he searched the house at Mercara and in the estate. D.W. 4 who is the First Class Magistrate who issued the search warrants gave evidence that he knew personally that Devasetty was living with his father.

(19) It should be remembered that the search warrant issued to the defendant authorised him to search the houses of Devasetty in Mercara and Bakery. Bakery is the place where the estate is situate. The meaning of the words 'the house of Mr. D.S. Devashetty' occurring in the search warrant Exhibit A-1(f) is that what the defendant was authorised to search was the house in the occupation and possession of Devasetty quite apart form whether Devasetty had or had no title to the property. That, it is clear, is how we should understand the search, the purpose of which is to secure the documents or records which were intended to be seized and which could be found only in the houses where Devasetty lived or occupied, it being immaterial where the title to the property was.

(20) We must, in my opinion, dissent from the finding of the District Judge that the search warrant did not authorise the defendant to search the houses searched by him or that those houses either exclusively belonged or were in exclusive occupation and possession of the plaintiff. Even if the plaintiff was in possession of the house along with Devasetty the search warrant did not make it impermissible for the defendant to search those houses so long as Devasetty was also one of the occupants of the houses.

(21) So, one of the grounds on which the District Judge found it possible to come to the conclusion that the searches made by the defendant were illegal searches disappears. It follows that the District Judge was not right in his assumption that the defendant acted beyond the authority conferred on him by the search warrant.

(22) The next question for consideration is whether the District Judge was right in his view that the search warrant issued to the defendant was an illegal search warrant and that therefore the search made by the defendant was a tortious act. For coming to the conclusion that the defendant had committed a tort in making a search under the warrant which was issued to him, the District Judge gave many reasons. Those reasons which he gave can be catalogued in the following way:

(1) that the warrant did not state that the Magistrate had reason to believe that Devasetty would to produce the document proposed to be seized if a summons was issued to him for production;

(2) that the application presented by the defendant for a search warrant did not allege that Devasetty was not likely to produce the document if a summons was issued to him;

(3) that there was no record to show that the Magistrate had any other material before him for his opinion that it was necessary to issue a search warrant;

(4) that the defendant was not examined by the Magistrate on oath for the verification of the truth of the allegations of the application;

(5) that since the word 'confidential' was written by the defendant on the application presented by him to the Magistrate, the Magistrate performed an executive act in official confidence when he issued the search warrant which he did without the application of his judicial mind to the question whether there was any necessity for the issue of the search warrant;

(6) that the Magistrate gave no reasons on the basis of which it was possible to think that he was satisfied that a search warrant should be issued without a summons being issued in the first instance;

(7) that the Magistrate did not consider that for the purpose of any enquiry, trial or other proceeding before the Court to which there is a reference in Para. 3 of sub-s. (1) of S. 96 of the Code of Criminal Procedure, it was necessary that a general search be made;

(8) that there was no pending matter before the Magistrate either in which he had to make an enquiry or a trial and that since the complaint was directed to be made by the State Government in regard to the offences suspected to have been committed only on October 6, 1955, long after the search warrant had been issued, the matter was not one falling within the third paragraph of sub-section (1) of section 96 of the Code of Criminal Procedure, and so, it was incompetent on the part of the Magistrate to issue a general search warrant like the one which he issued;

And (9) that since the defendant applied for the issue of a search warrant only to assist an investigation which he was making of the offences which Devasetty was suspected to have committed, it was not within the competence of the Magistrate to issue a search warrant to assist any such investigation.

(23) The discussion made by the District Judge in this way of the legality of the search warrant issued by the Magistrate was subjected by Mr. Govt. Pleader to the criticism that it abounds in a consideration of matters many of which either had no relevance or substance, Mr. Government Pleader asked us in the first instance to say that the District Judge missed entirely the importance of S. 1 of the Judicial Officers' Protection Act (Central Act XVIII of 1850) and S. 43 of the Police Act (Central Act V of 1861) and that if he had only correctly understood the import of these two sections, he would have found it impossible to rest his conclusions on many of the grounds on which they were based.

The argument advanced by Mr. Government Pleader on S. 1 of the Judicial Officers' Protection Act was that since the search warrant required the defendant to make a search as directed by that warrant and since the defendant was an officer or person bound to execute lawful warrant of a Magistrate, he was not liable to be sued in any civil Court for the execution of that warrant which he was bound to execute and which was within the jurisdiction of the Magistrate who issued it. Section 1 of the Judicial Officers' Protection Act (Central Act (XVIII of 1850) on which Mr. Government Pleader placed dependence reads:

1. 'No Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be

Non-liability to suit of officers acting judicially for official acts done in good faith, and of officers executing warrants and orders. liable to be sued in any civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate,

Justice of the Peace, Collector or other person acting judicially, shall be liable to be sued in any civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same'.

(24) The stress of the argument of Mr. Government Pleader was that the warrant issued by the Magistrate D.W. 4 was a lawful warrant which was within his jurisdiction and that since the defendant who was Sub-Inspector of Police is a person who was bound to execute that warrant, the plaintiff cannot sue him for damages in respect of the search made by the defendant in execution of the warrant which he was bound to obey.

(25) It is clear that Mr. Government Pleader is right in asking us to say that the defendant was bound to execute a lawful warrant issued by the Magistrate D.W. 4 provided the warrant was within the jurisdiction of the Magistrate. If the warrant issued by D.W. 4 was a lawful warrant and if it was within the jurisdiction of the Magistrate, the defendant who executed that warrant which he was bound to do, was plainly entitled to appeal to the protection created by this section.

(26) But Mr. Bhagavan appearing for the plaintiff has addressed a two-fold argument. His submission was that the provisions of this section were clearly inapplicable to the present case since the warrant issued by the Magistrate was not a lawful warrant and that it was equally inapplicable for the further reason that the warrant was not within the jurisdiction of the Magistrate.

(27) In support of these two submissions which Mr. Bhagavan strenuously maintained, he asked attention to Ss. 94, 96 and 165 of the Code of Criminal Procedure. The substance of the argument was that while S. 94 authorises the issue of a summons for the production of a document or thing the production of which is considered necessary for any investigation, enquiry, trial or other proceeding of the Court, and, Para 1 of S. 96(1) authorises the issue of a search warrant for the purpose of a general search or inspection is not applicable to cases in which there is no enquiry or trial pending before the Magistrate who is asked to issue the search warrant.

(28) It is true that in this case there was neither an enquiry nor a trial pending before the Magistrate when he issued the impugned search warrant. All that had happened was that under the provisions of sub-s. (2) of S. 155 of the Code of Criminal Procedure, permission had been accorded to the concerned police officer to investigate the non-cognizable offences suspected to have been committed. It is also clear from the requisition made by the District Superintendent of Police on August 22, 1955 to the defendant that what he was asked to do was to made a search and not a search for the seizure of a particular document or thing.

(29) The only provision under which a search warrant could be issued for a general search like the one which the defendant proposed to make is para 3 of S. 96(1) of the Code of Criminal Procedure. That paragraph reads:-

96. (1) 'Where any court has reason to believe that a person to whom a summons or order under S.

When search warrant may be issued. 94 or a requisition under S. 95, sub-section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition,

or where such document or thing is not known to the court to be in the possession of any person,

or 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. * * * *'

(30) Mr. Bhagavan asked us to contrast the provisions of para 3 of S. 96(1) with sub-s. (1) of S. 94 of the Code which reads:

94. (1) 'Whenever any Court, or, in any place beyond the limits of the towns of Calcutta and

Summons to produce document or other thing. Bombay, any officer in charge of a police station, considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under

under this Code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.'

It was pointed out by Mr. Bhagavan that the word 'investigation' occurring in S. 94(1) is not to be found in para 3 of S. 96(1). The argument maintained on this contrast pointed out by him between the two provisions is that whereas S. 94(1) authorises the issue of a summons even for the purpose of an investigation, para. 3 of S. 96(1) does not authorise the issue of a search warrant for the purpose of an investigation.

(31) Although the argument at first sight may appear presentable, it will be seen on a careful consideration of para. 3 of S. 96(1) that its interpretation suggested by Mr. Bhagavan should not commend itself to us. That paragraph makes it clear that in all cases where the court considers that the purpose of an enquiry would be served by a general search or inspection, it may issue a search warrant. A search warrant could be issued by the Court not only for the purpose of an enquiry, not only for the purpose of any other proceeding under the Code. The question is whether an investigation by the police for collecting evidence in respect of an offence suspected to have been committed is or is not a proceeding under the Code.

(32) It is, of course, clear that an investigation by the police is not an enquiry, and, it is obvious that it is not a trial. Any doubt on the question whether an investigation by police under the Code of Criminal Procedure for collection of evidence is or is not a proceeding under the Code is completely dispelled by S. 4(1)(L) of the Code of Criminal Procedure which defines investigation in the following way.

Definitions 4. (1) 'In this Code the following words and expressions have the following meaning unless a different intention appears from the subject or context-

* * * * (1) 'Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf: * * * *'

It is clear from this definition that an investigation under the Code during which a police officer or any other person authorised by a Magistrate collects evidence, is a proceeding under the Code. It is not disputed in this case that the investigation for which the defendant applied for a warrant of search from D.W. 4 was an investigation under the Code and that that investigation was an investigation which had for its purpose the collection of evidence. Since the defendant was of course a police officer, the investigation to aid which he sought the search warrant was manifestly a proceeding under the Code. That being so, from the plain language of para. 3 of S. 96(1) which authorised the issue of a search warrant for a general search if the purpose of a proceeding under the Code is served by such general search, it becomes clear that the search warrant applied for by the defendant was one which the Magistrate had the power to issue.

That in my opinion, is what we should say notwithstanding the fact that the word 'investigation' occurring in S. 94(1) does not occur in para. 3 of S. 96(1) of the Code. So long as that paragraph employs the comprehensive words 'or other proceedings under this Code' and the definition of an 'investigation' contained in S. 4(1)(1) of the Code makes it clear that an investigation like the one in the present case, is a proceeding under the Code, it would not be, in my opinion, right for us to depend upon the inexistence of the word 'investigation' in para. 3 of S. 96(1) for founding the conclusion that an investigation is not a proceeding under the Code or that a general search to aid an investigation is not within para. 3 of S. 96(1) of the Code.

(33) It may perhaps be that the omission of the word 'investigation' from para. 3 of S. 96(1) is attributable to the reason that the investigation to assist which a general search may be directed under that paragraph should be an investigation under the Code whereas an investigation for whose purpose a summons may be issued under S. 94(1) need not necessarily be an investigation under other statutes. The contrast between the language of S. 94(1) is capable of this explanation.

(34) This view, which, in my opinion, we should take receives full support from the decision of the Privy Council in Clarke v. Brajendra Kishore Roy, ILR 39 Cal 953 (PC). Lord Macnaghten, speaking for the Board in that case pointed out the unsustainability of the view taken by the High Court of Calcutta that S. 96 of the Code of Criminal Procedure authorised a Magistrate to issue a search warrant only when he was sitting as a court and only when some proceeding under the Code had been initiated before him. Lord Macnaghten referring to this interpretation of Harington J., observed:

'If his Lordship had read to the end of the form in Schedule V he would have seen that it disposes of his theory altogether. The form contemplates the issue of a search warrant before any proceedings of any kind are initiated and in view of an 'enquiry about to be made'.'

(35) That was a case in which a search was made by a District Magistrate after the out-break of serious disturbances between the members of two major communities. When the District Magistrate was summoned by the Commissioner of Police to the spot, he came to the conclusion that it was his duty to search the catchers. One of the catchers so searched was the plaintiff's cut cherry whose doors were forced open although the search was made by the police under the direction and supervision of the District Magistrate. When the District Magistrate was sued by the plaintiff for damages, the Court of first instance was of the view that since there was no pending proceeding before the Magistrate when he made the search, the search was not permissible. That view was upheld in appeal by the Chief Justice of the Calcutta High Court and Harrington Judicial Officers' Protection Act., who took the same view which was taken by the trial Judge.

The Privy Council had no difficulty in reaching the conclusion that that view was unsupportable and depended largely in support of that view upon form VII of Schedule V to the Code of Criminal Procedure which, it was pointed out, authorised the issue of a search warrant not only where the production of a document or thing was essential to a pending enquiry by also for an 'enquiry about to be made' into a suspected offence. It is more than abundantly clear from this pronouncement of the Board that a search could be made under S. 96 even when there was no matter pending before the Court which is asked to issue the search-warrant. If, as pointed out asked to issue the search warrant. If, as pointed out by the Board, for the purpose of an enquiry about to be made, a general search is permitted by Para. 3 of S. 96(1) of the Code of Criminal Procedure, it is difficult to understand how anyone can suggest that for an investigation which can properly be called a proceeding under the Code, that search warrant cannot issue.

(36) Although it is true that the Board did not say in so many words that a search warrant to assist an investigation can also be issued under the provisions of Para. 3 of S. 96(1) of the Code of Criminal Procedure, the clear implication of that pronouncement is that a general search for such investigation is equally permissible under its provisions.

(37) The High Court of Bombay in Re: Mahomed Tahir, AIR 1934 Bom 104, understood the Privy Council in the way in which I have explained it. That was a case in which a warrant issued under S. 96, Criminal P.C. by the Chief Presidency Magistrate on a letter addressed to him by the Collector of Customs in which he applied for a search warrant for a search of certain premises for the seizure of goods and documents which might be relevant to the investigation of the offence stated to have been committed. Referring to the observations of the Privy Council in Clarke's case, ILR 39 Cal 953 (PC),Broomfield J., observed:

'These observations and the form of warrant prescribed in the schedule do, I think, negative Mr. Garden Noad's contention that there must necessarily be a proceeding actually pending before the Magistrate at the time he issues the warrant. A warrant may be issued for the purposes of an inquiry about to be made, provided it is an inquiry either being made or about to be made otherwise than under the Code. If I had been able to accept the learned Government Pleader's argument that this warrant was issued for the purposes of a police investigation to be followed in the ordinary course by proceedings before the Magistrate himself, I should not have been prepared to say that the order was illegal.' (P. 107).

Although the actual decision in the Bombay case turned upon the fact that the investigation was not by the police but by the customs authorities, it is clear that their Lordships had no doubt in their mind that if the investigation was a police investigation under the Code, the issue of a search warrant for that purpose under Para. 3 of S. 96(1) would have been quite within the competence of the Magistrate.

(38) But Mr. Bhagavan asked attention to a more recent pronouncement of the Calcutta High Court in Hoshide v. Emperor : AIR1940Cal97 , which, according to him, supports his submission that a general search under Para. 3 of S. 96(1) to aid a police investigation is not permissible. There are no doubt certain observations made by Sen., in that decision which prima facie might appear to support the postulate of Mr. Bhagavan. But, when properly understood, the decision of the learned Judges in that case cannot be understood as supporting any proposition such as the one which Mr. Bhagavan placed before us. The case before the learned Judges of the Calcutta High Court was a case in which an Assistant Commissioner of Police of the Detective Department, Calcutta, made an application to the Chief Presidency Magistrate, Calcutta, for the issue of a search warrant to enable an investigation into certain offences suspected to have been committed in contravention of the Sea Customs Act. That search warrant was issued by the Chief Presidency Magistrate who directed a general search and in the search warrant he stated that he considered the issue of such warrant 'essential to the enquiry now being made' into the said offences.

The argument maintained before the learned Judges was that since it was plain that there was no enquiry now being made of the offences suspected to have been committed, the search warrant was an illegal warrant not within the competence of the Magistrate. That argument appealed to the learned Judges who directed the documents which had been Judges to be returned to the petitioners before them. In the course of his judgment, Sen J., observed that clause 3 of S. 9(1) had nothing to do with an investigation and that it did not provide for any step to be taken in aid of an investigation but authorised the Magistrate to issue a search warrant only for the purpose of serving an inquiry, trial or other proceeding under the Code. This observation was made after a discussion of the mistake committed by the Magistrate in confounding the investigation which was being then made with an enquiry which a Magistrate alone could make. Although Sen J. referred to the definition of an investigation contained in clause (1) of S. 4(1) of the Code, he used the definition only for the purpose of illustrating the distinction between an investigation and an enquiry and not for the purpose of considering the question whether an investigation, if it is a proceeding under the Code, can also be served by the issue of a search warrant under paragraph 3 of S. 96(1). The decision of the Privy Council in Clarke's case, ILR 39 Cal 953(PC), was distinguished on the ground that the search was made in that case to aid an enquiry which was about to be held. Khundkar J., however, in his concurring judgment rested his conclusion principally on the ground that the investigation to aid which the search warrant was issued did not fall within the definition contained in S. 4(1)(1) since the investigation was by the police of Calcutta and in connection with an offence under the Sea Customs Act. Those were the reasons why he thought that the investigation was not one made under the Code, and so, was not a proceeding under the Code.

(39) It is thus clear that the Calcutta decision is in many respects dissimilar to the case before us or to Clarke's case, ILR 39 Cal 953 (PC). The Magistrate who issued the search warrant in the Calcutta case committed a mistake in thinking that the search was necessary for a pending enquiry and the investigation was not an investigation under the Code.

(40) The only other case on which MR. Bhagavan depended was Mamsa v. Emperor, A I R 1937 Rang 206. This decision is of a single Judge who was of the view that paragraph 3 of S. 96(1) did not authorise a general search to assist an investigation. There is no discussion in this judgment of the importance of the definition of an investigation in clause (1) of S. 4(1) of the Code. It seems to me, if I may say so with great respect, that the Privy Council decision in Clarke's case, ILR 39 Cal 953 (PC), of which there was a discussion, was given a somewhat restricted meaning for which there was really no justification. We should, therefore, in my opinion, dissent from the view taken in this case.

(41) However that may be, any doubt that might arise from the pronouncement in the Calcutta case stands removed by the authoritative pronouncement of the Supreme Court in M.P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) , in which it was elucidated that a search under S. 96 is a temporary deprivation of the right to hold and enjoy property for the limited purpose of investigation. This is what their Lordships observed:--

'But, a search by itself is not a restriction on the right to hold and enjoy property. No doubt a seizure and carrying away is a restriction of the possession and enjoyment of the property seized. This, however, is only temporary and for the limited purpose of investigation.' (P. 302)

(42) It does not appear to me reasonable to say that a general search which may be made under the third paragraph of S. 96(1) for an enquiry which is made by a Magistrate to determine prima facie the truth or falsity of certain facts in order to take further action thereon, cannot be made during an investigation whose purpose is in substance similar. In my view, we should not accede to the contention of Mr. Bhagavan to the contrary.

(43) In view of that I take, it becomes unnecessary to consider the further submission made by Mr. Bhagavan that the search which the defendant wished to make could have been made only under the provisions of S. 165 of the Code of Criminal Procedure. That section authorises the police-officer, referred to in it to make a search during an investigation which he is authorised to make Mr. Bhagavan asked us to say that the investigation referred to in that section not only includes investigations statutorily authorised but also investigations authorised by a Magistrate under S. 155(2) of the Code. On the correctness of this postulate, it is not necessary for us to pronounce since it is clear that whether or not the power to make a search during an investigation of a non-cognizable offence is available from S. 155 of the Code of Criminal Procedure, the power of a Magistrate to issue a search warrant authorising a general search under paragraph 3 of Section 96(1) is clearly available to him under its provisions.

(44) So, it becomes manifest that in this case the Magistrate had jurisdiction under Section 96(1) to issue a search warrant directing a general search. But Mr. Bhagavan contended that even so, the warrant issued by him in the present case cannot be considered to be a lawful warrant within the meaning of Section 1 of the Judicial Officers' Protection Act. In support of this submission, we were asked to say that the Magistrate did not state in the order by which he directed the search to be necessary for the purpose of any proceeding under the Code or that he had reason to think that if a summons was issued in the ordinary way, the document or thing required would not be produced by Deva Setty. In support of this submission, Mr. Bhagavan's argument was of the pattern employed by the District Judge in coming to a similar conclusion although the District Judge did not very clearly focus his attention on the provisions of Section 1 of the Judicial Officers' Protection Act.

(45) But, it is clear that it is not possible for Mr. Bhagavan to say that any mistake committed by the Magistrate in the manner or form of the exercise the jurisdiction which he undoubtedly had to issue a search warrant would make the warrant issued by him a warrant not lawfully issued. So long as the Magistrate had jurisdiction to issue the warrant and he issued it, the warrant was a lawful warrant within the meaning of section 1 of the Judicial Officers' Protection Act. The defendant who was directed to make a search by that warrant by a Magistrate who had the jurisdiction to direct such search, was bound to obey the warrant. Since the warrant was one which was issued by the Magistrate in the process of such jurisdiction which he had, it was a perfectly lawful warrant, it being no concern of the defendant to enquire whether the warrant was wrongly issued or was issued on insufficient grounds or whether the search was directed without the application of the Magistrate's mind to the salient facts or features of the case or the adequacy or otherwise of the material available before him.

(46) In Sewal Ram Agarwala v. Abdul Majid, ILR 1938 (1) Cal 581 : AIR1938Cal177 , their Lordships of the High Court of Calcutta found no difficulty in repelling a contention similar to that advanced before us by Mr. Bhagavan. That was a case in which defendant 2 who was an Assistant Sub-Inspector of Police was asked by defendant 1 who was the Sub-Division Officer to make a search. It was undisputed that defendant 1 had the power to issue an order for search but the mistake committed by him was that he did not issue a search warrant to defendant 2 but merely issued an order to defendant 2 to make a search. It was contended that he search made by defendant 2 was an illegal search since the search could have been directed only by the issue of a search warrant and not otherwise. The claim made by the plaintiff in that case against the two defendants for damages, was turned down by the trial Court whose decision was affirmed by the High Court in appeal. Defendant 1, it was pointed out, had the power to direct a search under Section 96 of the Code of Criminal Procedure and that the omission to issue a warrant of search did not invalidate the search. That is what was observed in that context:

'Defendant No. 1 had power to issue an order for search and seizure of the tins of oil from the shop of the plaintiffs, under S. 96 of the Criminal Procedure Code. He, however, did not exercise this power in the particular manner in which it ought to have been exercised, namely, by the issue of a search warrant. But this irregular or illegal exercise of power does not imply that the order itself was without jurisdiction.' (P. 585 of ILR Cal): (at p. 178 of AIR). What the learned Judges said about the claim against defendant 2 who made the search and which is really of importance in this case is this:

'As regards the claim against defendant No. 2, the contention of the appellants is that he is not protect by the Judicial Officers' Protection Act, as he was bound to carry out the order of defendant No. 1 to search and seize the goods until and unless a prescribed form. The concluding portion of Section 1 of the Judicial Officers' Protection Act (18 of 1850), however, says that a person, bound to execute lawful orders of any Magistrate shall not be liable to be sued in any civil Court for execution of an order which he would be bound taxation execute, if within the jurisdiction of the person issuing the same. Defendant No. 2 was bound to execute lawful orders of defendant No. 1. The order in question was within the jurisdiction of defendant No. 1 in the sense that he had power and authority to pass it, though he did not exercise that power in the manner indicated by the Criminal Procedure `. Defendant No. 2 was, therefore, bound to carry out this order. In the case of Teyen v. Ram Lal, ILR 12 All 115, at p. 124, cited above, Edge, C.J., and Tyrrell J. Observed as follows: 'If the form 'jurisdiction' in that 'concluding paragraph' (the concluding portion of S. 1 of Act XVIII of 1850) were to be construed as meaning authority or power to issue the warrant in the particular matter and in the particular manner or form in which it was issued, the officer or person executing the warrant would under the section obtain no greater protection than the law, without the aid of Act XVIII of 1850, already afforded him, the protection being extended only to 'an officer of any court or other person bound to execute the lawful warrant,' etc. The protection to such officer or person afforded by the section was not against suits for executing lawful warrants or orders, which were not lawful, provided that such warrant or order was issued by a Judicial Officer in a matter within his jurisdiction, and not merely in a matter in which such judicial officer had authority or power to issue the particular warrant.'

(47) In my opinion, we should not be justified in saying that the warrant issued by D.W. 4 in the present case was not a lawful warrant. Nor was the District Judge right in thinking that the protection to which an appeal was made under the provisions of S. 1 of the Judicial Officers' Protection Act was not available to the defendant. In my opinion, he stood fully protected by the provisions of that section.

(48) It seems to me that we should reach the same conclusion for the reason that S. 43 of the Police Act (Central; Act V of 1861) affords the defendant similar immunity from the claim brought against him. That section reads :

'43. Plea that act was done under warrant--When any action or prosecution shall be brought or any proceedings held against any police-officer for any act done by him in such capacity, it shall be lawful for him to plead that such act was done by him under the authority or a warrant issued by a Magistrate. Such plea shall be proved by the production of the warrant directing the act, and purporting to be signed by such Magistrate and the defendant shall thereupon be entitled to a decree in his favour, notwithstanding any defect of jurisdiction in such Magistrate. No proof of the signature of such Magistrate shall be necessary, unless the court shall see reason to doubt its being genuine. * * * *'

It will be seen from the provisions of this section that the protection afforded by its provisions is fuller than that afforded by section 1 of Judicial Officers' Protection Act in the sense that the Police Act confers protection even in where the warrant suffers from defect of jurisdiction.

(49) In the view that we should, in my opinion, take, it becomes unnecessary to discuss the submission that the damages awarded are excessive. But I have no doubt in my mind that Mr. Government Pleader is right in urging before us that it was impossible for the District Judge in this case to award a sum Rs. 3,000/- by way of damages to the plaintiff even if the defendant was liable to pay any damages to him. The District Judge was of the view that the defendant had committed trespass and he was also of the view that civil trespass being actionable per se it was unnecessary for the plaintiff to prove any special damages.

I have grave doubts in my mind whether the District Judge was right in taking the view that the defendant had committed any actionable trespass. If he was armed with an authority authorising him to search the premises of Devasetty and if he proceeded to execute that warrant, whatever else may be said about the legality of the warrant or otherwise, there is, I think, no reason to take the view that even if the search warrant was not a lawful warrant, any trespass was committed by the defendant in respect of which he would become liable in tort. However that may be, even on the assumption that the tort committed by the defendant was civil trespass, it is clear that the award of a sum of Rs. 3,000/- by way of damages was fanciful and arbitrary. It is, however, not necessary to say anything more on this question since this appeal has to succeed on other grounds already discussed.

(50) This appeal is allowed; the decree of the District Judge is reversed and the plaintiff's suit is dismissed.

(51) In the circumstances, the direction in regard to costs should be that each party will bear his own costs in this court as well as in the Court below.

Kalagate, J.

(52) I agree.

(53) Appeal allowed.


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