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Gangadharan Vs. Kochappi Chellappan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ1517
AppellantGangadharan
RespondentKochappi Chellappan and anr.
Cases ReferredS. Narayanappa v. Income
Excerpt:
.....supreme court in kuttain pillai v. it may be stated that the words 'reason to believe' coupled with other words contemplate an objective determination based on intelligent care and deliberation involving judicial review as distinguished from a purely subjective consideration. when a magistrate issues a search warrant he acts judicially and cannot be deemed to be acting like a rubber stamp. the belief must be held in good faith :it cannot be merely a pretence. therefore, the order passed by the sessions judge was perfectly correct and there is absolutely nothing for the interference of this court in revision......of offence was alleged to be on 7-8-1984. on 8-8-1984 itself, the magistrate ordered : 'issue search warrant'. on 16-8-84, pursuant to the search warrant, the sub-inspector of police, balaramapuram conducted search in the residence of the 1st respondent. 13 items of furniture were taken to custody. a search list was prepared. both the petitioner and the 1st respondent claimed custody. after taking some evidence, the magistrate ordered entrustment of the articles to the petitioner. first respondent filed cri. r. p. 125 of 1984 before the sessions court, trivandrum against the order for search. by order dated 26-11-1984, the sessions judge allowed the revision and quashed the order. hence this revision.2. one of the contentions raised by the revision petitioner is that the first.....
Judgment:
ORDER

S. Padmanabhan, J.

1. Supported by an affidavit, the revision petitioner filed Cri. M. P. 3149/84 on 8-8-1984 before the Judicial Magistrate of the First Class, Neyyattinkara. Allegation in the petition was that the respondents (1st respondent herein and his son) committed theft of some items of furniture from his furniture shop and have hidden them at their residence. Petition was filed under Section 94 of the Criminal P.C. Prayer was to issue an order for search. Date of commission of offence was alleged to be on 7-8-1984. On 8-8-1984 itself, the Magistrate ordered : 'issue search warrant'. On 16-8-84, pursuant to the search warrant, the Sub-Inspector of Police, Balaramapuram conducted search in the residence of the 1st respondent. 13 items of furniture were taken to custody. A search list was prepared. Both the petitioner and the 1st respondent claimed custody. After taking some evidence, the Magistrate ordered entrustment of the articles to the petitioner. First respondent filed Cri. R. P. 125 of 1984 before the Sessions Court, Trivandrum against the order for search. By order dated 26-11-1984, the Sessions Judge allowed the revision and quashed the order. Hence this revision.

2. One of the contentions raised by the revision petitioner is that the first respondent, who, subsequent to the impugned order, claimed disposal of the properties in his favour, opposed the claim of the petitioner, and suffered an order against him regarding the disposal of the property, is not entitled to challenge the order for search without challenging the order for disposal of the properties. I think there is absolutely no force in this contention. The impugned order was challenged before the Sessions Judge even before the time allowed by law. The first respondent could have equally approached this Court for getting the order quashed under the inherent powers of this Court. For that purpose he could have availed of the time allowed by law. Participation in the enquiry for disposal of the properties and the claim made before the Magistrate that the properties may be given to him, have absolutely nothing to do with his right to challenge the order for search. Simply because he opposed the claim of the petitioner for custody and filed another petition claiming custody in his favour, there is no question of submitting himself to the order for search and thereby making himself ineligible to challenge the order. So also, a challenge of the subsequent proceedings is not a condition precedent to the exercise of the right to get the order for search quashed. There is no question of estoppel involved. When the order for search goes, all the proceedings taken consequent on such an order also must go. Therefore, there is no merit in the preliminary objection. The only question for consideration in this criminal revision petition is whether the order of the Sessions Judge quashing the impugned order needs interference or not.

3. It is true that pendency of- any proceeding before the Magistrate is not a condition precedent to the issue of search warrant under Section 94. It can be had as an independent proceeding. Section 94 is intended as an emergency provision. The right under that section could be exercised even by Executive Magistrates. Upon mere information and after conducting such enquiry as he thinks fit, the Magistrate can issue search warrant if he thinks that such a course is necessary. The wording of the section itself is 'upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property'. Before issuing a search warrant on the strength of the information as distinguished from a complaint, the Magistrate should, if possible, examine the informant on oath to ascertain the bona fides of the information in order to satisfy himself that there are reasons to believe that the information is correct. If that is not possible, he should at least act with the due consciousness of the fact that he is taking upon himself the responsibility of considering the weight of the information he received. The order is one of a very serious nature. The Magistrate has to see that the conditions prescribed in the section are satisfied. For that purpose, if he thinks fit, he may have to hold an enquiry. There must be an information or allegation which the Magistrate has reason to believe that a particular place is used for the deposit or sale of the stolen property. One of the conditions preceding the exercise of the jurisdiction is that a place is used for the deposit or sale of the stolen property. In the affidavit, there was no such allegation.

4. The only material on which the Magistrate acted was an affidavit filed by the petitioner. Counsel for the petitioner relied on Section 296 of the Criminal P. C. which provides that an affidavit may be read as evidence. But that is only in cases where the evidence is of a formal character. That is subject to all exceptions also. In a fit case the Magistrate can summon and examine the deponent of the affidavit. The mode of giving evidence in criminal cases by affidavit is a departure from the usual method. That provision does not override the general principle applicable to criminal proceedings. The application of the special rule of reading affidavit as evidence is intended to accelerate disposal of cases. Only if the occasion demands application of the special rule, the Magistrate can permit affidavits to be read as evidence. In this case, the Magistrate was dealing with a very serious matter and the evidence was not of a formal character as envisaged by Section 296. The Magistrate has not even applied his mind to the facts stated in the affidavit and he simply disposed of the petition in a mechanical way by a laconic order - 'Issue search warrant'. The order does not contain any reasons. Section 460 of the Criminal P. C. relied by the counsel for the petitioner has absolutely no bearing in this connection. That deals only with a case, among other things, when a Magistrate not empowered to issue a search warrant, does so.

5. In the applicability of Section 94, certain conditions are necessary. First of all, the Magistrate must have the information. Secondly, he must conduct such enquiry as he thinks necessary. On the basis of such an enquiry, he must have reason to believe that any place is used for the disposal of stolen property. The order must show that he applied his mind. In this case, at the best, the affidavit could be taken as evidence of the fact that the Magistrate had the information. In that connection also, the affidavit does not supply the full information that is required under Section 94. One of the components of the information required under Section 94 is that the place is used for the deposit of stolen property. That part of information is lacking in this case. The other two conditions namely, the conduct of an enquiry as the Magistrate thinks fit and the reason to believe that any place is used for deposit of stolen property are not at all satisfied in this case. On the information, no enquiry was admittedly conducted. The Magistrate gets jurisdiction to issue an order for search only after taking such enquiry as he thinks necessary. The Legislature has in its wisdom used such a safeguard in order to see that the provision is not abused or misused at the hands of the dishonest litigants. Without conducting an enquiry, the Magistrate cannot get the satisfaction on which he has to act. In an action having adverse reaction on the affected person, the Magistrate is expected to act only after getting reasonable belief. To pass an order, without an enquiry and satisfaction, may not be proper exercise of the jurisdiction.

6. In this petition, mala fides looms large. The petitioner's son married the daughter of the first respondent. The relationship got strained. They separated. The parties were at logger heads. There were exchanges of notices also. It was at this stage that the petitioner came with a petition to search the residence of the first respondent, which is a place well-known to him on account of the relationship. He must also be aware of the details of the items of furniture at the residence of the first respondent. It is said that under the cover of the search most of the household furniture of the first respondent were searched and taken in an attempt to insult him and wreak vengeance on account of the enmity. The search was applied for and ordered on 8-8-1984. Search was conducted only on 16-8-1984. That fact indicates that an order for search was not an emergency. The delay speaks for itself. By the order of the court, the petitioner was able to get custody of the items of furniture taken from the residence of the first respondent. Even though the order for search was obtained on the allegation that theft was committed on 7-8-1984, till this day no complaint was filed and no information was given to the police. It is evident that an order under Section 94 will not be a complete remedy for vindication of justice in the case of an alleged theft. This fact also indicates the mala fides behind the petition.

7. But the counsel for the petitioner said that some proceedings by way of enquiry is even now pending before the Magistrate. That fact was emphatically denied by the first respondent. 1 think the contention of the first respondent must be correct. There is nothing on record to show that such an enquiry is pending. Any enquiry under Section 94 could only be before the order for search and not after the order. This is not a case in which there could be an enquiry or order under Section 451 of the Cr. P.C. An order under Section 451 is contemplated only when property is produced before court during an enquiry or trial. The disposal of property in this particular case could only be under Section 94 itself subject to the provisions of Section 457 of the Code. There is nothing to show that any such enquiry for the disposal of the property is pending. Even if such an enquiry is pending, that is no reason why steps were not taken for vindication of justice and bringing the offender to justice if actually the allegation of theft is correct.

8. The Sessions Judge was perfectly correct in his finding that the cryptic order passed by the Magistrate cannot stand scrutiny in the light of the clear wordings of Section 94 as explained by the Supreme Court in Kuttain Pillai v. Ramakrishnan : 1980CriLJ196 . In that case it was held:

Issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant.

9. The Magistrate is not having an unfettered discretion to issue search warrant. The order cannot be arbitrary. An order without the necessary application of mind is illegal. An order for search cannot be given for the mere asking. While ordering search, the Magistrate is exercising a judicial function. The exercise of the discretion must be judicial. In Melicio Fernandes v. Mohan AIR 1966 Gao 23 : (1966 Cri LJ 1258) a Special Bench of the High Court had occasion to consider an identical question. In that case it was held that in such cases, the Magistrate is not having unfettered discretion and (the exercise of) discretion must be sound and guided by the provisions of law. Instead of ordering search warrant under Section 94, the Magistrate is also having the jurisdiction to order an investigation by the police to satisfy himself that there are reasons to believe that the allegation is correct. In that decision it was observed:

It may be stated that the words 'reason to believe' coupled with other words contemplate an objective determination based on intelligent care and deliberation involving judicial review as distinguished from a purely subjective consideration. This function being judicial, it necessarily follows that the Magistrate has to apply his mind judicially.

It follows that it is not the subjective satisfaction of the Magistrate, but the satisfaction must be objective. The satisfaction is justiciable and therefore reasons in support of the satisfaction must be contained in the order itself in order to ascertain whether the Magistrate, who issued the order had such satisfaction. In that decision it was further held:

When a Magistrate issues a search warrant he acts judicially and cannot be deemed to be acting like a rubber stamp. He must retain ultimate responsibility for seeing that the search warrant is not abused.

10. When an action is justiciable, it could be had only on the requisite satisfaction with supporting reasons even in administrative actions. 'Reason to believe' presupposes such satisfaction at least to the extent of looking into the mala fides or bona fides behind the action. S. Narayanappa v. Income-tax Commr., Bangalore : [1967]63ITR219(SC) is a case in which the provisions of the Income-tax Act came up for consideration. But the principles laid down in that decision are applicable to the present case also. The words 'reason to believe' have been interpreted in that decision and it reads:

Again the expression 'reason to believe' in Section 34 does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith : it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section.

Under Section 94 also, as I have stated earlier, the Magistrate, before acting under that Section, must have 'reason to belief'. The section lays down as to how the reasonable belief has to be entertained. From the foregoing discussions, it is clear that the Magistrate did not have such a belief and the order does not show that he attempted to have such a belief on facts. Therefore, the order passed by the Sessions Judge was perfectly correct and there is absolutely nothing for the interference of this Court in revision.

11. Crl. Revision petition is therefore dismissed.


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