1. This is a petition under Article 227 of the Constitution by the accused in C. C. No. 269 of 1955 on the file of the Court of the First Class Magistrate, Changanacherry. The respondent is the complainant in the said case.
2. Paragraphs 2, 3 and 4 of the affidavit filed in support of the petition read as follows:
The respondent filed the case above referred to on the allegations that I had left with him on 9-10-1955 my Nalvazhi and Peredu account books for the year 1125; that on 12-10-1955, I went to his house in Changanacherry and in his absence and despite the protest of his servant removed from there the said two account books along with a bill book and Kurippu accounts which belong to him, thus committing offences punishable under Sections 451 & 392, I.P.C. He alleged that the books are kept at my residence, Anandabhavanam Puthiacavu, Mavelikara. The Court on the application of the complainant issued a warrant for search and recovery of the alleged stolen books.
3. The Police acting on the warrant so issued, searched a house belonging to my son and situated more than a mile away from the one described in the warrant and breaking open an iron safe there, removed a Nalvazhi and a Peredu book for 1125 with my address printed thereon and a sheet of paper on which had been written some accounts. These have been produced in Court and they are now in the Thondi room of the Changanacherry Police Station. The books belonging to the complainant and alleged to have been stolen by me have not been recovered.
4. On 2-11-1955 the complainant by a petition prayed that photographic copies may be taken of all the pages of the Nalvazhi and of the pages of the Peredu in the name of the complainant, of the pages containing the accounts of the Mavelikara Central Bank conducted by my son and of the pages in the name of several other customers. He also prayed that a certified copy of such photographs may be issued to him.
This petition was heard on 5-11-1955 and the Court on 7-11-1955 passed the order sought to be quashed in these proceedings.
3. In the affidavit on behalf of the respondent the allegations in para 2 were admitted; but regarding the allegations in para 3 he said that they were not true and that the books recovered by the Police were recovered 'from the place described in the' search warrant which is the residential house of the petitioner'. He also stated that:
The petitioner suppressed these books and produced other false and concocted books of account to the suit filed by him against me in the District Court of Mavelikara as O.S. No. 67 of 1950. I have made a counter-claim in the said suit for Rs. 7,000/- and odd. The books recovered on search would show that the petitioner's claim in the suit is false and that my counter-claim is true and that he was entitled to get copies of the entries in those books 'for the purpose of evidence both in the criminal case and the civil suit.
4. By the order challenged, i.e., the order of 7-11-55 the Magistrate directed that a photographic copy be prepared as desired by the respondent though he denied his prayer for a copy thereof. The only provision which has any bearing on the subject is Section 516A, Criminal P.C. 1898:
When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy or natural decay, may after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
and it is clear therefrom that the order of the Magistrate for the taking of photographic copies of the account: books recovered in pursuance of the search warrant issued by him is unauthorised and clearly without: jurisdiction.
5. What the respondent attempted was nothing but an abuse of the process of Court with a view to obtaining evidence for establishing his contentions in O.S. No. 67 of 1950 in the District Court of Mavelikara and we are very much surprised indeed to note that the First Class Magistrate has allowed himself to be used as an instrument for that purpose. The order of the Magistrate impugned in this petition being passed under such circumstances and without jurisdiction can in no way be sustained and has to be quashed.
6. Order accordingly.