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Harbans Singh Vs. the State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1978CriLJ1591
AppellantHarbans Singh
RespondentThe State of Punjab and anr.
Cases ReferredIn Shiv Dayal v. Sohan Lal Bassar
Excerpt:
.....of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - kakkar in his affidavit stated that the chief judicial magistrate, after having satisfied himself, had issued the search warrants which have duly been executed. unless the reasons are apparent on the record, the failure to state reasons 'could lead to the inference that the exercise of discretion was arbitrary and not based on well-re-cognized principles and this could be a good ground for setting aside the order......referred to as old code) for the search of the places mentioned in the petition. the learned chief judicial magistrate, patiala, passed the following order on the same day:i have gone through the above report and i have heard the investigating officer and have perused the police file. i have reason to believe that shri harbans singh accused will not produce the things and documents on a requisition under section 94, cr. p.c., so, search warrants as requested be issued.2. search warrants authorising sh. gurdial singh, deputy supdt. of police, vigilance bureau for the search of the places specified in the application and for the recovery of things and documents, were issued on the basis of which the search of the office and house of sh. harbans singh, chairman, punjab state.....
Judgment:
ORDER

Gurnam Singh, J.

1. A case under Sections 5(1)(d) and 5(2)of the Prevention of Corruption Act, 1947, was registered at Patiala, against Shri Harbans Singh, Chairman, Punjab State Electricity Board, Patiala, by Shri Gurdial Singh, Deputy Superintendent of Police, Vigilance Bureau, District Patiala on 10-8-1973 at 8 O'clock. On the same day Sh. Gurdial Singh, Deputy Supdt. of Police, made an application in the Court of Chief Judicial Magistrate, Patiala, requesting for the issuance of a search warrant under Section 96, Cr. P.C. 1898 (hereinafter referred to as old Code) for the search of the places mentioned in the petition. The learned Chief Judicial Magistrate, Patiala, passed the following order on the same day:

I have gone through the above report and I have heard the investigating officer and have perused the police file. I have reason to believe that Shri Harbans Singh accused will not produce the things and documents on a requisition under Section 94, Cr. P.C., so, search warrants as requested be issued.

2. Search warrants authorising Sh. Gurdial Singh, Deputy Supdt. of Police, Vigilance Bureau for the search of the places specified in the application and for the recovery of things and documents, were issued on the basis of which the search of the office and house of Sh. Harbans Singh, Chairman, Punjab State Electricity Board, was conducted on the same day and the articles mentioned in annexures P. 3/1, P. 3/2, P. 3/3 and P. 3/4 were recovered.

3. Sh. Harbans Singh has filed this petition for quashing the order of the Chief Judicial Magistrate dated 10-8-1973 passed for the issue of search warrants under Section 96 of the 'old Code' and all other subsequent proceedings taken in pursuance of those search warrants on the grounds that the same were illegal and void.

4. Shri B. R. Kakkar, Under Secretary, Vigilance Department, Punjab State, filed his affidavit on behalf of respondent No. 1. Respondent No. 2 also filed his own affidavit denying the allegations made against him. Sh. B. R. Kakkar in his affidavit stated that the Chief Judicial Magistrate, after having satisfied himself, had issued the search warrants which have duly been executed. It is further stated by him that a charge-sheet has been filed against the petitioner in the Court of Special Judge, Patiala, and he has been charge-sheeted under Section 5(1) (a) (b) and (d) punishable under Section 5(25) of the Prevention of Corruption Act, 1947 read with Section 161, Indian Penal Code. He further stated that a case under the Punjab Excise Act for the recovery of liquor/ whisky and a case under the Arms Act for the recovery of a pistol, the licence of which had expired on 4-7-1973, were, registered against the petitioner.

5. The learned Counsel for the petitioner vehemently urged that the first information report was registered at 8 A. M., that the application for search warrants was put up before the Chief Judicial Magistrate at 10 A. M., that there was no material before the Chief Judicial Magistrate to satisfy himself that any purpose will be served by the search warrants and that he issued the search warrants without applying his judicial mind to the facts of the case. He further pointed out that the Chief Judicial Magistrate had no power to issue the search warrants as the offence alleged in the first information report was not triable by him.

6. In this case, the Chief Judicial Magistrate, Patiala, issued the search warrants under Section 96 of the old Code, having reason to believe that Shri Harbans Singh will not produce the things and documents on a requisition under Section 94 of the old Code. It is not disputed that no process under Section 94 of the old Code had earlier been issued by any Court. It is not a case, where the documents or the things alleged to be in the possession of the accused, were not known.

7. Under Section 94 of the old Code, summons or a written order, can be issued to a person in possession or power of such document or thing required to be produced for the purpose of any investigation, inquiry, trial Or other proceedings under this Code by or before such Court or officer.

8. An order under Section 96 of the old Code can be passed only, if the Court has reason to believe that a person to whom summons or order under Section 94 or requisition under Section 95 (1) of the old Code, has been or might be addressed, will not or would not produce the documents or things as required by such summons or requisition or where such documents or things are not known to the Court to be in the possession of any person or where the Court considers that the purpose of any inquiry or trial or other proceedings under the old Code will be served by a general search or inspection. Thus the Court is required to record its reasons which should indicate that it has applied its mind before passing the order and for that it must see that there is sufficient material before it which justify the drastic action which is being invited to take. In the instant case the only material before the Chief Judicial Magistrate for the issuance of the search warrants was, the first information report of the case and the request made by the police. The Chief Judicial Magistrate heard the Investigating Officer and went through the report and believed that the accused will not produce the things and the documents and issued the search warrants under Section 96 of the old Code, without giving any reason as to why the accused will not produce the documents and the things required. No summons or requisition had been issued to him. The Court also did not give reasons as to what purpose would be served by the general search. The order passed by the Chief Judicial Magistrate reproduced above, shows that he believed the report made by the police and without recording any reasons passed the order. It also appears that the Chief Judicial Magistrate had not applied his mind and took action on insufficient material. When it appears that there is not sufficient material and the Magistrate has not applied his mind, the High Court will always interfere as it will amount to an irregularity.

9. In Shiv Dayal v. Sohan Lal Bassar 72 Pun LR 348 : 1970 Cri LJ 1517 it has been held that (at p. 1520 of Cri LJ):

the function of issuing a warrant is a judicial function. Though it is not specially laid down in Section 96 that the order should contain reasons therefor, but it has been repeatedly laid down that where the orders of the Court are open to appeal or revision by a higher Court it is highly desirable to give reasons in support of the order so that the superior courts would be in a position to judge whether there has been a proper exercise of the discretion or not. Unless the reasons are apparent on the record, the failure to state reasons 'could lead to the inference that the exercise of discretion was arbitrary and not based on well-re-cognized principles and this could be a good ground for setting aside the order.

10. The Chief Judicial Magistrate has given no reason as to why, he considered it necessary, to issue the search warrants and, therefore, apparently it was not a proper exercise of discretion because the Court is required to give justiciable reasons for its conclusion, to enable the Appellate or Revisional Court to know whether the Court has applied its mind to the point in issue and decided the same in accordance with law or not. In these circumstances the Chief Judicial Magistrate, Patiala, had acted illegally and his order directing the issue of the search warrants cannot be sustained. Without going into the other aspects of the case, this petition is accepted and the impugned order for the issue of search warrants is quashed. The documents and the articles, excepting those required for the purpose of any trial pending against the petitioner, be returned to him.


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