1. These arc three applications made under Article 226 of the Constitution and Section 439, Criminal P. C. They arise out of certain searches made in the premises at Cuttack of the petitioners in the three applications by Sri S. W. Abbas, Inspector, Special Police Establishment Ministry of Home Affairs, Government of India, on 14-6-52. On the said searches it would appear that nothing of an incriminating nature with reference to the purpose of the search was recovered from the premises of the petitioners in O. J. C. 17/52, but some documents were seized from the house of the petitioners 1 and 2 in O. J. C. 33/52. All the petitioners in the three petitions before us applied to the Magistrate who issued the search warrants for certified copies of (1) the report made by the police or any other person on the basis of which the search warrant was issued; (2) the search warrant; and (3) copies of the order-sheet of the Magisterial record. The Magistrate granted certified copies only of the search warrant and declined to grant certified copies of the other documents asked for. These petitioners, thereupon, came up to this Court with these applications. In all the applications, the petitioners ask for two reliefs : (1) a direction tothe Magistrate to grant certified copies of such of the documents applied for whose copies have been refused by him : (2) To set aside the order issuing the search warrant and the searches made thereunder. It may be noted that in O. J. C. 33/52, the petitioners also ask for the return of the documents and papers seized at the search. The two questions thus raised on the hearing of these applications are : (1) The right of the petitioners to obtain copies of the documents they have asked for; (2) the legality of the searches and the relief, if any, to be granted.
2. We have heard fairly exhaustive arguments from both sides on these points. With reference to the first point, the petitioners' advocate relies entirely on Section 548, Criminal P. C. which runs as follows:
'If any person affected by a judgment or order passed by a Criminal Court, desires to have a copy of the Judge's charge to the Jury, or of any order or deposition or other part of the record, he shall, on applying for such a copy, be furnished therewith.'
His argument is that if as a fact the Magistrate has recorded a formal order on the basis of any report or application made to him by a police officer, he is entitled to copies thereof by virtue of this section. He points out that a Magistrate acting under Section 96, Criminal P. C. is statedly a Court. He therefore contends that Section 548 applies in terms.
On the other side it is argued that while it may be correct to say that the Magistrate acting under Section 96, Criminal P. C. is a Criminal Court, it does not follow that the persons whose premises are searched, are entitled either to a copy of the information or report on which the search warrant is issued or of the order directing the issue of the search warrant. The learned Advocate-General, however, apart from any legal contention, was prepared to furnish the advocate on the other side with a copy of the order passed by the Magistrate for the issue of the search warrant, in order to enable the petitioners' advocate to argue the question relating to the legality of the search; but contended that so far as the report of the police officer on which the order is based, the petitioners are not entitled to copies. He has relied on the case in --'Anantapadmanabhiah v. Emperor', AIR 1930 Mad 975 and -- 'Queen-Empress v. Arumugham', 20 Mad 189 (PB), to show that the copies of the police reports on which a Magistrate acts, cannot be granted.
On the other side our attention has been drawn to General Rules and Circular Orders (Criminal' of this Court Vol. I, Part IV, Chap. 1, Rule 4 which is as follows:
'In criminal cases, parties are entitled to obtain copies, certified or uncertified, of any portion of the record of trial; this rule covers such police papers as may be made use of as evidence at the trial. Note : Police reports on which proceedings are instituted under Chs. VIII, X, XI and XII form a portion of the record of trial.'
The learned Advocate-General points out that this rule and the note thereto can apply only to the stage of the trial of a case and is intended to facilitate defence of the accused. It is therefore contended that no person is entitled to a copy of the police reports at the investigation stage as in the present case. It is unnecessary, however, for us to decide the question thus raised as to the right of the person affected by the search, to obtain copies of the police report on which the search, may be directed by a Magistrate. We should be reluctant to hold in favour of any such absolute right without a consideration of thefacts of an individual case, and as to whether the grant of such a copy would or would not reasonably prejudice the investigation which might then be pending.
3. In the present case, however, as already stated the learned Advocate-General was prepared to supply the petitioners' advocate, with a copy of the order of the Magistrate on which the search warrant was issued. He has in fact, in fairness supplied the same to the learned advocate of the petitioners while the arguments were proceeding, in order to help a proper consideration of the legality of the search. But even apart from this concession, we think that where a Magistrate passes a formal order before issuing the search warrant, the person against whom it is issued would be ordinarily entitled to a copy thereof, though there may be no legal obligation prescribed by any provision of the Code to record such an order before issuing a search warrant. Section 74 Evidence Act shows that 'Documents forming the acts or records of the acts of official bodies or tribunals are public documents,' A jrecorded order for the issue of a search warrant by a Magistrate appears to come directly within the scope of this definition. Besides, since under Section 96, Criminal P. C., the Magistrate who issues the search warrant, issues it as a Court, it would be difficult to say that an order of a Court actually passed for whatever purpose, is not public document. It may be suggested that this view would lead to a disclosure of the material relating to investigation at a premature stage. That however need not be the case if the Magistrate in passing his order takes the care to avoid pointed reference to matters still under investigation and merely places on record an enumeration of the materials which were placed before him and the conclusions reached by him, on the basis of which an order for issue of search warrant is made, so that a superior Court when called upon to do so, may satisfy itself that the search warrant has been issued after judicial consideration of the relevant circumstances and materials.
4. The question as regards copies relating to the report or information on which the order is based remains. As already stated, we do not propose in this case to decide the larger question that has been raised with reference to Section 548, Criminal P. C. On a reference to the records of the Magistrate which have been called for by this Court, we find that the order of the Magistrate is based not on any police report, but on an ordinary application by the Inspector of Special Police Establishment, Sri S. W. Abbas, which sets out the circumstances, under which he felt called upon to apply for the warrants of search. When an order for search has been made on the basis of such an application, which is not in itself a police report, setting out any of the materials collected in the investigation, we can see no legal objection to the grant of a copy thereof. Indeed, if a person affected by the search, is entitled to a copy of the order, if any, issued for search, it seems to be reasonable to say that he is equally entitled to obtain a copy of the application (as distinguished from a police report) on which the order itself was based, in order that such order may be fairly understood. Since in this case the learned Advocate-General has, of his own accord, furnished a copy of the order to the Advocate on the other side, we consider that copy of the application made by the Police Inspector, Shri Abbas, to the Magistrate requesting for the issue of search warrants, may also be granted. We accordingly direct that certifiedcopies be granted of the Magistrate's order dated 14th June 1952, and of the application dated 13th June 1952, made by the Inspector, Shri S. W. Abbas, for the issue of the search warrants.
5. In view of the above decision we think that both sides should have a further opportunity to place before us any additional arguments that they may have as to the legality of the searches in the light of the concents of the application for the issue of search warrants.
6. These petitions will, therefore, be heard again at a very early date. Any of the petitioners may apply to this Court and obtain before the next hearing date certified copies of any of the documents whose copies have been hereby directed to be granted.
7. I agree.