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Kalinga Tubes Ltd. and ors. Vs. D. Suri and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberApplication Nos. 17, 18 and 33 of 1952
Judge
Reported inAIR1953Ori153
ActsConstitution of India - Article 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 95, 96, 96(1) and 165; Delhi Special Police Establishment Act, 1946 - Sections 6
AppellantKalinga Tubes Ltd. and ors.
RespondentD. Suri and anr.
Appellant AdvocateK. Patnaik, Adv.
Respondent AdvocateAdv. General and ;A.M. Chatterjee, Adv.
DispositionApplication dismissed
Cases ReferredManicklal v. State
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadha das, c.j.1. these applications were previously heard on the 21st and 22nd of october and we pronounced orders on 27-10-52 (see air 1953 orissa 49) granting to the applicants one of the prayers which they made in their applications viz., a direction for the issue of copies of certain documents, which the learned magistrate held the applicants not to be entitled to. we felt that in the light of the additional material that may be available to the applicants on getting those copies it would be desirable to hear further arguments with reference to the legality of the searches which was the second question that was raised. we accordingly directed that the applications should be posted for further hearing. they have therefore come up again before us and we proceed to consider the.....
Judgment:

Jagannadha Das, C.J.

1. These applications were previously heard on the 21st and 22nd of October and we pronounced orders on 27-10-52 (See AIR 1953 Orissa 49) granting to the applicants one of the prayers which they made in their applications viz., a direction for the issue of copies of certain documents, which the learned Magistrate held the applicants not to be entitled to. We felt that in the light of the additional material that may be available to the applicants on getting those copies it would be desirable to hear further arguments with reference to the legality of the searches which was the second question that was raised. We accordingly directed that the applications should be posted for further hearing. They have therefore come up again before us and we proceed to consider the question of the legality of the searches.

2. It is necessary to note at the outset that when the applications were first heard on the 21st October, the advocate for the petitioners sought to put forward an additional ground of fact said to have a bearing on the legality of the searches. A petition raising it was filed on 17th October 1952. The additional ground was that since the searches were conducted by an officer of the Special Police Establishment, Delhi, they were illegal, inasmuch as the requisite consent of the State Government of Orissa under Section 6 of the Delhi Special Polica Establishment Act, 1946, enabling him to exercise powers and jurisdiction of a police officer In Orissa State was not previously obtained. Since these applications were filed as early as on 21-6-52 and the hearing date had been fixed from time to time at the request of the advo-cates on both sides an additional ground of fact at such a late stage could not be entertained. The affidavit in support of the applications made only a vague statement that the petitioners got the information about the absence of requisite consent 'recently' but did not disclose when and how that information was obtained. There was therefore no adequate ground for entertaining this belated application raising a fresh and disputed question of fact. In thecircumstances, we intimated at the original hearing of these applications on the 21st October that we were not prepared to allow that fresh allegation of fact to be relied on for the purpose of challenging the legality of the searches.

3. It may also be stated that so far as O. J. Cs. Nos. 17 and 18 of 1952 are concerned, as already previously noticed in our order dated 27-10-52, no articles were recovered at the searches with which these applications are concerned. In the normal course, we would have declined straightaway to entertain any further arguments regarding the legality of the searches on these two applications inasmuch as there was no relief by way of return of seized articles which this Court could grant in respect of those applications. It is not the function of this Court to exercise its jurisdiction by way of revision or issue of writ for the mere purpose of granting a declaration if it cannot be followed up by the grant of effective relief. We have however allowed these applications also to remain pending after we pronounced our previous order dated 27th October inasmuch as the question of the legality of the same searches was necessary to be determined with reference to O. J. C. 33/52 in which certain articles were recovered which could be directed to be returned if the search was found to be illegal.

4. The application for the search-warrant in this case was made by the Inspector, Special Police Establishment, Ministry of Home Affairs, Government of India, New Delhi. That application as well as the order of the learned Additional District Magistrate directing the issue of the search-warrants show that the warrants were issued under Section 96, Criminal P. C., for the seizure of certain

'documents and correspondence with the overseas suppliers in respect of import license No. 602626/51 CCI. and documents in relation to the sale and disposal of the aforesaid license and the goods imported thereunder.'

The searches were asked for in respect of the houses and offices and premises of four individuals, viz., (1) Sri Bijoyananda Patnaik, (2) Sri Nanda Kishore Modi, (3) Sri Mayadhar Mohanty and (4) Sri Uchhabananda Saman-tarav as also in the office premises of two companies, viz., The Kalinga Tubes Ltd., and the Pearl Cycles Stores and, so far as the second of these companies are concerned, for its branches at Nayasarak and Ranihat. Thus, in all seven warrants were issued.

Based on the two facts, viz., (1) that the search-warrants were applied for by and issued to the Inspector of Special Police Establishment, New Delhi and (2) that the warrants were for certain unspecified documents of a somewhat general nature three main arguments have been advanced on behalf of the applicants contesting the legality of the searches, namely, (1) the search-warrants were issued to assist the special Police Establishment at New Delhi in a roving and fishing inquiry to find out whether or not certain alleged frauds were committed and not for purposes of any proceeding under the Criminal P. C. (2) The searches were of a wide-and general character not supportable with reference to the requirements of Section 96. (3) The Magistrate when he issued the search-warrants has not kept in view the requirements for the valid issue of a search-warrant and has not applied his mind judicially tp the same.

5. The arguments have to some extent centred round the question whether or not thesearch-warrants issued in these cases were for what may be called a general-search as district from a search lor a specified document or a thing. Decided cases have recognised that both kinds of searches are contemplated under Section 96(1) and that the legal requirements of each,, are somewhat different. See -- 'In re Mahomed Tahir', AIR 1934 Bom 104 (A). But the Code does not clearly specify what is a 'general search'. Some indications may however be gathered from Section 96 and Section 165. Section 96 has three clauses. Clauses (i) and (ii) refer to the production of 'the document or the thing' contemplated in Section 94(1), whileClause(iii) of Sub-section (1) of Section 96 is not limited to the production of any such 'document or thing' but refers to a 'general search'. Section 165 relates to searches by police officers on their own responsibility and without an order from the Magistrate during investigation under Chapt. 14 of the Criminal P. C., and refers to the search for 'anything necessary for purposes of investigation into any offence'. It requires that before proceeding to make the search he must leave a record in writing 'specifying as far as possible the thing for which the search is to be made'. The same S. 165(1) as it was before amendment by the Criminal P. C. Amendment Act of 1923 (Central Act 18 of 1923) ran as follows:

'Whenever an officer-in-charge of a police station or a police officer making an investigation considers that the production of any document or thing is necessary to the conduct of any investigation into any offence which he is authorised to investigate and there is reason to believe that the person to whom a summons or order under Section 94 has been or might be issued will not or would not produce 'such document or thing' according to the directions or summons or order or when 'such document or thing' is not known to be in the possession of any person, such officer may search or cause search to be made for the same in any place within the limits of the station of which he is in charge or to which he is attached.'

It will be seen that the circumstances under which a police officer could make a search during investigation by virtue of Section 165(1) as it stood prior to the amendment of 1923 appear to be the same as those with reference to which a Magistrate can issue a search warrant even prior to investigation and with reference to clauses (i) and (ii) of Sub-section (1) of Section 96 which clauses are recognised as relating to particular searches.

In view of the fact that the previous Sub-section (I) of Section 165 has been substituted by the 1923 Amendment Act by the present Sub-section (1) of Section 165 which requires the 'specification of the thing as far as possible' it would appear to be seasonable to say that -unless the document or the thing or other article to be seized at the search is specified, as far as possible the search cannot be said to be a particular search, but that it must be treated only as a general search. In -- 'Paresh Chandra v. Jogendra Nath', AIR 1927 Cal 93 (B), one of the learned Judges pointed out the distinction as follows:

'If, for instance, the police go and search the house of a well-known budmash with the hope of finding stolen property of a case which the police might have been investigating or for any specific article that would be described as a general search for stolen property.'

The other learned Judge in that case has stated the same in different language in the following terms:

'A general search means a search not in respect of specific documents or things which the officer considered was necessary or desirable for the purpose of the investigation in hand, but a roving inquiry for the purpose of discovering documents or things which might involve persons in criminal liability.'

Instances of searches which having regard to the terms of search-warrants were held to be general searches are to be found in the cases in-- 'Bajrangi Gope v. Emperor', 38 Cal 304 (C);-- 'Moideen V. S. M. Brothers v. Eng Thaung & Co.', AIR 1917 Low Bur 131 (D); -- 'T. E. Pratt v. Emperor', AIR 1920 Cal 43 (E); --'Jagannath Agarwalla v. Emperor', AIR 1920 Cal 352 (F); -- 'AIR 1934 Bom 104 (A)' and --'Hoshide v. Emperor', AIR 1940 Cal 97(G).

6. Thus, it would appear that in order that a search is to fall outside the category of a general search, it must relate to a particular document or thing specifying the same as far as may be possible. It is not necessary, however, that the search should be confined to a single document or thing, nor is it necessary that the specification should be in any sense precise or give the exact description of each and every one of the documents to be seized. It appears to me, prima facie, that warrants issued, for the production of a particular category of documents with reference to an alleged or suspected but particular offence, may well be a warrant for a particular search as opposed to a general search. But I must confess that on a study of the decided cases, I have felt some difficulty in drawing the line and in corning to a clear conclusion as to whether the warrants issued for searches in present cases are to be considered as warrants for particular searches or for a general search. Though my inclination is to consider them not as warrants for a general search, I think, it would be safer to consider the legality of these warrants on the footing that they are warrants of general search. It is necessary, however, to emphasize that whether a search falls under the one category or the other, there can be no doubt that search-warrants are not to be lightly issued. As early as in -- 'Queen v. Syed Hossain Ali', 8 W R 74 Cr (H), it was pointed out that:

'It can scarcely have been the intention of the Legislature to empower police-officers or other underlings to make harassing domiciliary visits, to inquire, minutely into the private concerns of individuals, and to seize any part of their papers under the bare chance that something might therein be found tending to the conviction of any accused parties.'

In -- 'Emperor v. Mohammad Shah', AIR 1946 Lah 456 at p. 458 (I), it was pointed out by Marten J. as follows:

'A perusal of the general provisions contained in Chapter 7, Criminal P. C., as regards search and entry, clearly discloses that it was the undoubted intention of the Legislature to preserve the common right of privacy by requiring that no such entry or search should be conducted without the written order of a Court. These provisions are based on the law of England where an Englishman's house is said to be regarded as his castle.'

The other learned Judge, Bhandari J. reinforced the same idea by reference to certain observations of Lord Camdon, C. J. in -- 'Entick v. Carrington', in (1742-74) 95 E R 807- (J). It has also been pointed out in quite a number of cases what serious damage is inflicted on the prestige and business of individuals and business houses by unfounded and arbitrary searches. See 'AIR 1940 Cal 97 at p. 101 (G)' and -- 'Piyarelal v. Thakur Dat Sharma', AIR 1916 Lah 274 (K). It is therefore of paramount importance to confine the issue of search-warrants whether of a general nature or of a particular nature to the strict requirements of law. But it is equally important in the larger interests of the administration of justice that public officers Engaged in the discharge o| their duties connected with investigation or inquiry relating to offences or suspected offences should be afforded fair and reasonable facilities for searches in the course of such investigation or enquiry if applied for on reasonable grounds and if calculated to further such investigation or inquiry. Accordingly, the duty of balancing these two conflicting considerations has been vested by Section 96 in the Magistrate and to a very limited and circumscribed extent only in the police officer under Section 165, Criminal P. C.

7. In the present case, the main argument addressed to us on behalf of the applicants is, as already stated, based on the fact that the application has been made by the Inspector of Special Police Establishment, New Delhi, and that the warrants were issued to him. It is pointed out that under Section 96, the warrant can be issued only for purposes of 'an inquiry, trial or other proceeding under the Criminal P. C.' It would appear, and indeed it is admitted on behalf of the opposite parties that the search-warrants were applied for at a stage when it cannot be said that the officer was engaged in any investigation under Chapt. 14 of the Criminal P. C. For, admittedly, no charge-sheet was filed in respect of any particular offence by the date when the search-warrants were issued (probably not even by now, but the subsequent delay may well have been due to the pendency of these applications which were filed within a few days after the searches).

To elucidate what exactly the Inspector, Special Police Establishment, was engaged in at the time the Orissa Police Manual has been referred to in the course of the arguments. Though, in terms it probably does not apply, it has been made use of before us on the assumption that similar rules apply to all Special Police Establishments, an assumption which has not been contradicted. Chapter XV of Vol. I of the Orissa Police Manual relates to the functions of the Criminal Investigation Department. Rule 411 in that Chapter recognises that the inquiry contemplated under that Chapter by the C.I.D. police (corresponding to the Special iormation prior to the investigation contemplated by Criminal P. C.). It is accordingly urged that the search-warrants in these cases were issued merely for the purpose of enabling a roving inquiry by the special police establishment, New Delhij into certain suspected frauds, without anything tangible in the nature of a reasonably suspected commission of an offence.

To show that a search-warrant issued under those circumstances is illegal, the following cases have been strongly relied upon before usby learned counsel for the applicants, viz., 'AIR 1920 Cal 43 (E)'; 'AIR 1934 Bom 104 (A)' and 'AIR 1940 Cal 97 (G)'. It has also been urged that the warrants could not be issued so as to authorise a member of the Special Police Establishment, New Delhi, to make searches within the State of Orissa, without proof that by virtue of Section 6 of the Delhi Special Police Establishment Act of 1946, the particular Inspector had the consent of the State Government of Orissa for the exercise of his powers and jurisdiction within the State. As mentioned at the outset, this particular branch of the argument raises a question of fact at a belated stage and we must proceed for the limited purpose of these applications on the footing that he had such consent.

8. The above-mentioned cases relied? upon by learned counsel for the applicants require to be noticed somewhat in detail with reference to the arguments raised. In 'AIR 1920 Cal 43 (E)' the search-warrant was issued

'for the production of all accounts, ledgers, stock-books, copy-books, invoices, order-books, correspondence, challans, note-books and any other correspondence or documents which may have a bearing on transactions with the Munition Board, as being essential to the inquiry now being made into the suspected offences.'

The search was applied for at a stage when the Calcutta police were still trying to secure materials to find out whether frauds had been committed in transactions with the Munitions Board (analogous to what is alleged in argument as having happened in the present case). The main ground on which this search-warrant was held to be illegal was that on the information available to the Magistrate, there was nothing to show what connection the particular person whose premises were to be searched could have had with the materials, the production of which was considered essential to the inquiry or to justify the issue of a warrant for the search of his premises. It is rather remarkable that shortly after this case was decided, the legality of the search of another person's premises, in connection with the same matter which gave rise to the occasion for the search in 'AIR 1920 Cal 43 (E)', came up before the same Bench for decision; and that is the case reported in 'AIR 1920 Cal 352 (F)'.

On this occasion, the Magistrate sent up certain materials with reference to which the search-warrants in both the cases were issued. Thereupon the two learned Judges came to different conclusions, Choudhury, J. sticking to his previous view and not attaching much value to the new material produced which were not brought to the notice of the High Court on the prior occasion, while the other learned Judge, Newbould J. held that in view of that material, the search was perfectly legal. In the end, however, the learned Judge in order to obviate the rehearing of the case before a third Judge agreed to the same order in spite of his difference. These two cases are instances of what may be called general searches and only show that such a search is not to be ordered without clear material before the Magistrate to show how the person, whose house is to be searched, is likely to be connected with the thing for the production of which the search is to be made. Incidentally, it would appear from the latter case that at least one of theJudges was prepared to hold the search to be legal notwithstanding that at the time a regular investigation under the Criminal P. C. by the police officer had not been started.

The case in 'AIR 1934 Bom 104 (A)' was a case in which the Collector of Customs applied for a search stating that he had information that certain persons were defrauding the Government revenue in respect of duty payable on consignments of goods imported by them and that searches at certain specified premises relevant for the seizure of 'any goods, documents or correspondence relevant to the investigation of those offences under Ss. 417 and 167(72) of the Sea Cu_stoms Act' was necessary, and the Magistrate issued the warrant accordingly. This was held to be a, warrant for a general search and the facts were held to show that the warrant was issued for the purpose of an inquiry by the Customs Authorities into a non-cognizable offence, but not for the purpose of any inquiry under the Criminal P. C. On this ground the issue of the search-warrant was held to be illegal. The learned Judge who delivered the judgment of the Court expressly stated that if he had been able to accept the argument of the learned Government pleader that the warrant was issued for the purposes of a police investigation to be followed in the ordinary course by proceedings before the Magistrate himself, he would not have been prepared to say that the order was illegal.

The next case and the one most strongly relied upon on behalf of the applicants is the case in 'AIR 1940 Cal 97 (G)'. The facts in that case are to some extent, analogous to those in the present case. That was a case in which on the application of the Assistant Police Commissioner in the Detective Department, the Chief Presidency Magistrate, Calcutta, issued a search-warrant. In his application, the Assistant Commissioner stated that information had been received from the Collector of Customs, Calcutta, to the effect that systematic undervaluation of cotton piece-goods, assessable to duty on market resulting in considerable loss of revenue to Government was being committed by certain-named parties, in contravention of the Sea Customs Act and to cheat the Government. Thereupon search-warrant was issued authorising searches in the premises of the said persons for the production of documents, account-books and other papers for the years 1936-37, 1937-38, 1938-39, which were considered essential 'to the inquiry now being made' into the said offence. Both the learned Judges held that the issue of the search-warrant was illegal. The Magistrate in his explanation stated that he issued the warrant acting under Clause (iii) of Sub-section (1) of Section 96. The main ground on which the search was held to be illegal by both the learned Judges in that case were: (1) the search under Section 96(1)(iii) under which the learned Magistrate purported to issue the warrant could be only with reference to 'an inquiry under the Criminal P. C. was not applicable to the Calcutta Police as appears from Section 1(2), Criminal P. C. itself, and hence Section 96 could have no application, and (2) the Magistrate himself stated in the warrant that the documents were essential to 'the inquiry which was now being made' but as a fact no 'inquiry under the Criminal P. C.' had yet been started. This according to the learned Judges shows that the Magistrate was confusing between 'inquiry' and 'investigation'. It was held that this confu-sion had led in the mind of the learned Magistrate to a misapprehension of the true import of Clause (iii) of Sub-section (1) of Section 96, The learned Judges were therefore of the view that the facts show that the learned Chief Presidency Magistrate did not apply his judicial mind to the question whether there were sufficient grounds before him for the issue of the search warrant.

9. A consideration of the above cases does not, in our opinion, support the contention raised on behalf of the applicants that the legality of the searches now under question is open to challenge merely on the ground that they have been applied for (a) by the Inspector of Special Police; or (b) at a stage before any investigation under Chap. 14, Criminal P. C. had started.

10. It is, however, pointed out that if the search-warrants in these particular cases are warrants for general search, they can be justified with reference to Clause (ii) of Sub-section (1) of Section 96, Criminal P. C. only if the Magistrate 'considers that the purposes of any inquiry, trial or other proceeding under the Code will be served by the general search.' It is further pointed out that the word 'investigation' appearing in Section 94 which by reference is attracted so far as Clauses (i) and (ii) of Sub-section (1) of Section 96. is deliberately omitted in Clause (iii) thereof. It is therefore argued that this indicates quite clearly that a much stricter standard is intended to be observed for the issue of warrants of general search than in the case of warrants for particular search. It is accordingly contended that the warrants issued in these cases before the possible commencement of any investigation under Chap. 14 of the Code cannot be said to be for purposes of any such 'inquiry' and must, therefore, be held to be illegal.

While I am prepared to accept the view that the absence of the word 'investigation' in Clause (iii) of Sub-section (1) of Section 96 indicates the requirement of a higher and stricter standard for general searches, I am not prepared to say as a matter of law, that a general search cannot be ordered before an investigation under Chap. 14, Criminal P. C. has been commenced. In view of the Privy Council case in -- 'Clarke v. Brojendra Kishore Roy', 39 Cal 953 (L) (PC) it has been conceded that the actual pendency of any inquiry by a Court under the Code is not necessary to the validity of the issue of a search-warrant. Having regard to that decision, it is clear that the phrase 'for purpose of' in Clause (iii) of Sub-section (1) of Section 96 which is a very comprehensive term, is not to be construed as meaning 'during the pendency of'. All that is necessary is that the Court issuing the search-warrant should consider on reasonable grounds, that the purposes of any inquiry, trial or other proceeding under the Code will be served by a general search. The Privy Council in coming to the conclusion it did in 39 Cal 953 (PC) (L), relied on form No. 8 in Schedule V, Criminal P. C. That form is one which is framed under Section 555, Criminal P. C. and is statutory. It indicates that a search-warrant can be issued when information has been laid before a Magistrate of the commission or suspected commission of an offence and it has been made to appear to him that the production of the article to be searched for, is essential to the inquiry now being made or about to be made into the said offence or suspected offence. This presumably is a form common to all the three clauses of Section 96 (1). The indication in this form fromthe contents thereof showing that a search-warrant (common as above pointed out to all classes of searches) can be issued when an inquiry is about to be made in respect of a 'suspected' offence, is clearly to the effect that the issue of the search-warrant is not confined to cases where there is definite and legally admissible material about the commission of anoffence which in the normal course can only be after regular investigation under Chap. 14. It would, therefore, not be correct to say as is contended before us that the issue of the search-warrant would be improper merely because the stage of investigation under the Cr. P. C. had not yet begun.

In the Privy Council case in -- '39 Cal 953 [(PC)' (L), the search, the legality of which was challenged, was a general search for arms inside a certain building in the proximity of the place where just on the previous day there was serious rioting between the two groups of persons, in which arms were said to have been used by one group against the other, and one group had injured two persons of another group with revolver shots, each on different, but successive occasions. The search apparently was made on the information that the arms were concealed in some of those neighbouring buildings. The actual facts of this case appear from the report in -- 'Clarke v. Brojendra Kishore Roy', 36 Cal 433 (M), from the judgment of Brett J., whose, dissenting view as to the legality of the searches has been accepted by the Privy Council though not on the self-same grounds. It would be apparent from a perusalof the facts in., that case that the search was considered legal notwithstanding that there was so actual inquiry or investigation at the time about a particular effence, and what all appeared to them was that some serious offence was actually committed without any clear information as to the offenders. It appears to be, therefore, reasonable to think on a consideration of the Privy Council case, that the phrase 'for purposes of' is to be construed as not, in itself, implying either the pendency of the specified proceedings or the immediate or imminent initiation thereof. It appears to me, therefore, that what is necessary in such cases is that the Magistrate should be reasonably satisfied that the search is likely to be ai link in the chain which in the normal course will lead to an inquiry under the Cr. P. C., if the expected material is found on the search, and that he should also be satisfied that there is reasonable ground for the expectation.

11. Considered in this light, the mere fact that in the present case the stage at which the warrants were issued was prior to the initiation of any proceeding under the Cr. P. C. by way of investigation, inquiry or trial, is not sufficient to show that the issue of the search-warrants was illegal.

It is, however, contended that in any case, since the special police officer in this case is not shown to have been authorised under Section 6, Delhi Special Police Establishment Act, 1946, it cannot be predicated that the search is a link in the chain which is likely to lead to the stage of investigation or inquiry under the Cr. P. C. This argument, however, cannot be sustained. It is true, as admitted, that the stage at which the search-warrants were issued, was only a kind of preliminary investigation by the special police outside the Cr. P. C. But the fact cannot be ignored, that the moment the special policeofficer is able to gather all the material, a proceeding under the Cr. P. C. is bound to be initiated as Rule 412 of the Orissa Police Manual in Chapter 15, Vol. I thereof indicates. That rule runs as follows:

'412. S. P., C. I. D. responsible for legality of procedure. The S. P., C. I. D., is responsible that, as soon as, in the course of any enquiry under his control, there is reason to suspect the commission of a cognizable offence, an information is recorded and a regular investigation undertaken under Chap. 14, Cr.P.C.'

It is not to be assumed that when that stage is reached, the State Government will not give the necessary consent under Section 6 (even if it Iras not already done so) for investigation by the special police officer himself. In any case, an investigation by the ordinary police is normally likely to follow in the usual course, provided the search yields relevant material. It cannot, therefore, be said in such a case that the issue of the search-warrants to a special police officer must necessarily be held as a matter of law to be outside the purposes of investigation or inquiry under the Cr. P. C.

12. The only real and substantial point, therefore, which has to be considered in these cases, as in other similar cases, is whether as a fact there are sufficient grounds for the issue of the search-warrants in question and whether the Magistrate applied his mind judicially to the requirements of the law in this behalf, and whether he had relevant and adequate material for the purpose. This question has to be carefully and anxiously considered as above stated and in order to satisfy ourselves that the warrants were not arbitrarily asked for and unreasonably issued.

The application made by the Inspector of Special Police Establishment on 13-6-52 states that the four persons in respect of whose premises and offices searches were asked for, viz., Sri Bijayananda Patnaik, Sri Nandakishore Modi, Sri Mayadhar Mohanty, and Sri Ushha-bananda Samantaroy, are all of them directors of a company styled as 'Eastern Merchantile Corporation Ltd., Cuttack,' with its head-office at the residence of Sri Bijayananda Pntnaik above-stated. It is further stated therein that the said company obtained license No. 602626/ 51/CCI, from the Chief Controller of Imports of the Ministry of Commerce. Government of India, to import complete cycles to the tune of two lakhs for internal consumption of Orissa State. It is also stated that it has been reliably learnt that this license which was meant far the internal consumption of Orissa State, was black-marketed at Calcutta, and thus a fraud was committed on the Ministry of Commerce and that this also amounted to an offence under the Import and Export Control Act of 1947. It is further stated in that application that it is considered essential to take possession of the relevant documents and correspondence with the over-seas suppliers and in relation to the sale and disposal of the aforesaid license and the goods imported thereunder, 'for the purpose of the inquiry' that has been taken up 'by the Delhi Special Police' Establishment. It is on the application with the above-mentioned material allegations that the learned Magistrate made the order for the issue of the search-warrants. The warrants, it is to be noticed, were issued not merely as against the above-mentioned four directors but also as against the office premises of Pearl CyclesStores and Kalinga Tubes Ltd. Search as against them was applied for on the statement that, according to reliable information these companies had a hand in the disposal of the license and that some relevant documents are likely to be found with them.

The Magistrate's order states as follows: 'Ihave gone through the diary of the Inspector and the instructions issued to him by S. P., Special Police Establishment, Delhi, and I am satisfied that a general search is necessary for purposes of investigation into the alleged cheating under Section 420, Penal Code of the Ministry of Commerce, Government of India, and violation of the Import and Export Control Act by Messrs. Eastern Mercantile Corporation Ltd., Cuttack. Search warrants may, therefore, issue in the name of Inspector S. W. Abbas against the seven persons and firms listed in the petition.'

It is strenuously argued that what is stated in the application and in the Magistrate's order show that the Magistrate issued the search warrants merely to help a roving inquiry by the Special Police Establishment and that in effect the warrants were issued merely becausethe police Inspector asked for it, and because such a very senior officer as the Superintendent of Police, wanted it. It is said that the Magistrate has not applied his judicial mind at allto the requirements of Section 96. It is pointed out that while he states in his order that the search was necessary for purposes of an investigation into the alleged cheating, in the explanation tohis Court contained in his affidavit dated 19-8-52, he stated that the matters out of which the application for search arose, were being 'inquired into' at the time the search-warrants were issued. It is also pointed out that the Inspector himself asked for the warrants 'for the purpose of enquiry by Special Police, Delhi.' It is, accordingly, suggested that the learnedMagistrate did not appreciate the distinction between investigation and inquiry and has ignored the fact that the inquiry by the Special Police Officer was not the inquiry under the Cede contemplated by Section 96.

It is also pointed out that while the application by the Inspector, Special Police Establishment, in terms, appears to rely upon the requirement of Clause (i) of Sub-section (1) of Section 96, when he stated therein that the persons against whom the search was being applied for are not likely to produce the documents and other things on the mere issue of notice or summons underSection 94, the learned Magistrate issued, what he considered to be a warrant for 'general search' as appears from his order, without even considering the question whether or not the persons concerned were likely to produce the documents on mere summons and without recording any reasons for the view, if any, held by him that they will not so produce. Another circumstance which has been brought to our notice and relied upon is that in the actual search-warrants issued, which reproduce verbatim the form No.8 given in Schedule V, Cr. P. C., none of the various bracketted alternatives have been scored out so as to indicate thereby the exact circumstances with reference to which the search warrants were intended to be issued.

We are not impressed, however, by any of the above circumstance as showing that the learned Magistrate did not apply his judicial mind to the questions involved. In view of the fact that the Magistrate has given a categoricalorder setting out his reasons in as clear a manner as such a situation would permit, and after taking some time for consideration as appears from the fact that the search was applied for on the 13th and the order was passed en the next day, we do not think that the above-mentioned comparatively trivial circumstance should cut-weigh what appears from his order; nor can the fact that there is no record of the reasons for the belief of the Magistrate that the persons concerned would not produce the documents if a summons were issued be of material consequence in this case. See also -- 'Manicklal v. State', AIR 1953 Cal 341 (N).

13. It has been very strenuously urged that the statement in the application of the Inspector, Special Police, for the issue of the search-warrants to the effect that the license in question was meant for internal consumption is absolutely unsupportable. To substantiate this, learned counsel for the applicants offered, ia the course of the arguments, to produce before us the actual license. We, however, declined to permit that to be done, since the statement in the application is not that the licease on the face of it shows that it was meant for internal consumption, but only that it was in fact meant for internal consumption. It is not for us at this stage to go into the question whether or not there was other material relevant under the Evidence Act in support of that statement. All that we have to look into is whether the Magis,-trate had material before him on which he had reason to think that that statement was not irresponsible and unfounded. It has also been urged before us that the statements in the application that the s id license was black-marketed in Calcutta and that a fraud was committed amounting to an offence under the Indian Penal Code, or the Import or Export Control Act of 1947, are all of them erroneous both in fact and in law. Here again, we have to reiterate that that question is one not for us to judge at this stage and all that we have to see is whether the Magistrate applied his mind judicially on the material before him.

It has to be remembered that the Magistrate in satisfying himself about the existence of sufficient basis for all the above statements, is not confined to a consideration of what would be strictly evidence under the Evidence Act. While no doubt the Magistrate is not to issue a search-warrant merely because a Police Officer however high-placed asked for it, it is not as though the Police Officer's statement as to the effect of the inquiry so far made by the police is to be totally disregarded and that no weight is to be attached thereto. The statements in this behalf of responsible officers are entitled to weight. See AIR 1920 Cal 43 at p. 44 (E). In the present case, however, the order of the Magistrate very clearly indicates that he went through the diary of the Inspector and the instructions issued to him by the Superintendent of Special Police Establishment, Delhi. The reference to the instructions of the Superintendent of Special Police Establishment, appears to be not for the purpose of merely issuing the warrant, because a high-placed officer asked for it, but for the purposes of understanding the case-diary produced. If on a reference to that material, the material statements made in the applications of the Special Police Inspector for the issue of the search-warrants can be said to have reasonable basis and if the issue of the search-warrants was reasonably necessary for purposes of aninquiry, trial or other proceeding under the Codeby or. before him, all that we have got to do is to scrutinise whether the Magistrate applied his mind judicially to the material before him, in the light of the requirements of the law and not to sit in judgment over his opinion.

The real handicap of the petitioner's advocate on this part of the case is that the materials, viz., the case-diary and the instructions of the Superintendent of Special Police, which the Magistrate has relied upon, are not available to him and obviously could not be made available so as to enable him to canvass the real question involved in this case, on the merits before us. It is true that the record referred to as the case-diary is not the case-diary contemplated under Chap. 14, Criminal P. C., but is only the record analogous to that contemplated under Rr. 432, 433, 435 and 436 in Chap. 15 of Vol. I of the Orissa Police Manual. These records must obviously be treated as confidential and the applicant's counsel could not be given any access to the same. The learned Advocate General, however, placed them before us for our perusal. We have carefully and anxiously gone through the same for the limited purpose of satisfying ourselves that the Magistrate had applied his mind judicially to the materials before him and that the materials were such as could reasonably satisfy him. with reference to the requirements of the law and that none of the material statement in the Inspector's application is without basis or irresponsible. Having considered the material from this aspect, we are not prepared to say that the Magistrate had exercised his function in this case erroneously or arbitrarily.

14. The only point about which there may be scope for some 'difference of opinion on the material available is whether in view of the fact that the stage of investigation under Chap. 14 of the Code had admittedly not yet commenced, it could be reasonably said that the search was required for purposes of 'any inquiry' by or before the Magistrate. But as already shown above, that is not a legal objection, and must depend on the appraisement of the facts of the situation by the Magistrate as they appear from the available materials. All that, therefore, we need say is that we have satisfied ourselves that the issue of the search-warrants is not open to the objection that it was meant to help a roving inquiry by the Special Police without the likelihood of an inquiry under the Cr. P. C. following within a reasonable time in respect of a suspected offence, depending of course to some extent on the mate-rial available at such searches. It cannot be said that if, as appears from his order, the Magistrate thought that 'a general search is necessary for the purposes of an investigation into the alleged cheating under Section 420, Penal Code', such an opinion was an unreasonable one on the materials before him. If that opinion can be sustained, it would follow that in the circumstances the search can well be said to be a substantial link in the chain that in the normal course may lead to 'an inquiry under the Cr. P. C. by or before the Magistrate' and hence required for the purpose. Having, therefore, given our best consideration to the facts and circumstances of the case, we are not prepared to say that the issue of the search-warrants in these cases is illegal.

15. In the result, therefore, subject to the previous order we have already passed, on27-10-52, these applications are dismissed, but in the circumstances, without costs.

Narasimham, J.

16. I agree.


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