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M. Shanmugasundaram Vs. Kancheepuram Vellalar Silk Handloom Weavers Co-operative Production and Sales Society - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1977CriLJ620
AppellantM. Shanmugasundaram
RespondentKancheepuram Vellalar Silk Handloom Weavers Co-operative Production and Sales Society
Cases ReferredSambandan v. S.T.S.V. Kandaswami Fadayaehi
Excerpt:
- - the petitioner cannot, therefore, be heard to say that the issue of warrants for searching the office premises of the society as well as the house of the petitioner was in excess of the powers of the court......the former president of a co-operative society situated in kancheepuram, to declare the issue of search warrants against him to be materially irregular and with out jurisdiction. while admitting that petition, interim stay of the proceedings before the chief judicial magistrate, chingleput was granted in crl misc. petition no. 2847 of 1976. crl misc. petition no. 3062 of 1976 has been filed by the respondent in the main petition for vacating the stay.2. as the former president of the kanjeepuram vallalar silk handloom weavers co-operative production and sales society, the petitioner was suspected of having committed certain offences such as criminal breach of trust, falsification of accounts etc. hence an application made by the present president of the society under section 107 of the.....
Judgment:
ORDER

Natarajan, J.

1. Criminal Miscellaneous Petition No. 2846 of 1976 has been filed by the former President of a Co-operative Society situated in Kancheepuram, to declare the issue of search warrants against him to be materially irregular and with out jurisdiction. While admitting that petition, interim stay of the proceedings before the Chief Judicial Magistrate, Chingleput was granted in Crl Misc. Petition No. 2847 of 1976. Crl Misc. Petition No. 3062 of 1976 has been filed by the respondent in the main petition for vacating the stay.

2. As the former President of the Kanjeepuram Vallalar Silk Handloom Weavers Co-operative Production and Sales Society, the Petitioner was suspected of having committed certain offences such as criminal breach of trust, falsification of accounts etc. Hence an application made by the present President of the Society under Section 107 of the Tamil Nadu Co-operative Societies Act (hereinafter referred to as the Act) the Chief Judicial Magistrate, Chingleput issued two search warrants, one relating to the office of the Society and the other relating to the house of the petitioner. Search was accordingly conducted at both the places and the articles and books seized from the office have been produced in court. The petitioner contends that the issue of search warrants is not in accordance with law and therefore, the proceedings against him should be quashed.

3. Mr. D.K. Srinivasan Gopalan, learned Counsel for the petitioner, contended that the Chief Judicial Magistrate has exceeded the powers given to him tinder Section 107 of the Act in issuing the search warrants for the office of the Society and the house of the petitioner being searched. To appreciate the argument of Mr. Srinivasan Gopalan, it is necessary to refer to the provisions of Section 107 of the Act in brief. That Section has been incorporated for taking, effective steps for getting the books, accounts, documents, securities cash and other properties, whether moveable or immovable, belonging to a Co-operative Society whenever there is a change in management due to a reconstitution of the committee or a supersession of the old committee. When the books, records, cash etc., are not readily handed over or when the taking over is not smooth, the succeeding committee or officer will have to obtain a certificate from the Registrar and then move the Presidency Magistrate or Magistrate of the First Class in whose jurisdiction the office of the Society or the records and properties of the Society is or are situated. Sub-section (2) of Section 107 lays down that no certificate should be issued by the Registrar under subsection (1) without making such inquiry as he deems necessary. Sub-section (4) of Section 107 states that the Presidency Magistrate or the Magistrate of the First Class may, pending disposal of an application for directing delivery, to the reconstituted committee, special officer etc., of the records, properties etc., appoint a receiver to take possession of the records and properties. Placing reliance on these provisions, Mr. Srinivasa Gopalan contended that (1) in the instant case the respondent has not moved the Registrar for the issue of a certificate, (2) the Registrar has not held an inquiry and issued the certificate mentioning therein the items of records and properties which are to be handed over and (3) the Magistrate has not appointed a receiver, and as such, the entire proceedings are illegal. The further contention was that, in any event, the Magistrate had no powers to issue the search warrants as the issue of search warrants is not at all contemplated by the section. Though Section 107 contemplates obtainment of a certificate from the Registrar and the appointment of a receiver in appropriate cases by a Magistrate, I do not think the contentions of Mr. Srinivasa Gopalan can be sustained. There is nothing in the section which inhibits a Presidency Magistrate or a Magistrate of the first class from issuing search warrants in appropriate cases for safeguarding the interests of the society. Once the Magistrate is given jurisdiction to pass orders for delivery of properties, it automatically follows that he will be entitled to exercise all the powers conferred on him by the Criminal Procedure Code, in exercise of the jurisdiction vested in him.

4. In Alagappa Gounder v. Karup-pa Chetty a similar question with reference to Section 87(c) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (corresponding to Section 101 of present Act of 1959) arose for consideration. There too, a contention was raised that a Magistrte entitled to exercise powers under Section 87(c) had no power to issue a search warrant. Repelling that contention Somasundaram, J., held as follows:

Once the court is given jurisdiction to pass orders for delivery of property, then it impliedly carries with it power of doing all that is necessary for the execution of that order.

The correctness of this view was doubted by Krishnaswamy Reddy, J., in Murugesa Mudaliar v. Ramachandran (1967) 1 M LJ 379 on account of the decision of the Supreme Court in Durgah Committee v. State of Rajasthan (1962) 1 SCJ 583 : (1) 1962 Cri LJ 507. A Division Bench of this Court has subsequently approved the decision in Alagappa Goundar v. Karuppa Chetti and distinguished Durgah Committee v. State of Rajasthan, (1962) 1 SCJ 582 in Sambandan v. V. Kandasami Padayanchi : (1970)2MLJ368 . Since Section 107 of the Act is more or less identical with Section 101 of the H.R. & C.E. Act in its main features, it has to be held that the principle of law laid down in Alagappa Goundar v. Karuppa Chetti, (Mad) would apply to the facts of the instant case also. The contention of Mr. Srinivasa Gopalan that the procedure prescribed in Section 107 of the Act has not been followed, viz., that a certificate had not been obtained, that the Registrar has not conducted an inquiry and specified the articles which had to be taken over, and that the Magistrate has not appointed a receiver and therefore, the issue of the search warrants by the Magistrate is premature, even if it is not illegal, cannot also be accepted. When once it is accepted that a Magistrate can issue a search warrant in respect of an application under Section 107 of the Act, it necessarily follows that the exercise of that power cannot be trammelled down by the procedure contemplated in Section 107 of the Act. It is open to the Magistrate to issue a search warrant in an appropriate case if he finds that there is necessity and justification for issuing such a warrant and any delay in the issue of such warrant will defeat the interests of the Cooperative institution.

5. On behalf of the petitioner another ground of objection was also raised by Mr. Srinivasa Gopalan. It was contended by him that under Section 93 of the Criminal Procedure Code, 1973 a Magistrate can issue a search warrant only in connection with any inquiry, trial or other proceedings under the Code, and therefore, an application under Section 107 of the Act will not; entitle the Magistrate to issue a search warrant. This argument does not take note of Section 93(1)(a) of the Criminal Procedure Code, where it is stated that if any Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition under Sub-section (1) of Section 92 has been or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, the Court may issue a search warrant. A Magistrate acting under Section 107 of the Act has undoubtedly to be construed as a Court as laid down by the Division Bench in Sambandan v. S.T.S.V. Kandaswami Fadayaehi, : (1970)2MLJ368 , Mr. Swamidurai learned Counsel for the respondent, represents that in this case, notice was issued to the petitioner in the first instance, and it was only when default was committed by him, the search warrants were issued. The petitioner's counsel says that no notice was issued to his client. Nothing much turns on the question whether a notice was issued or not, for Section 93(1) (a) of the Criminal Procedure Code, contemplates that even in cases where a summons or order or requisition has to be sent, the Magistrate can issue the search warrant. The question of issuing a search warrant is therefore, purely dependent upon the exigencies of the situation. The learned Magistrate must have felt that without the issue of search warrants the interests of the Society cannot be safeguarded and therefore, issued the warrants. The petitioner cannot, therefore, be heard to say that the issue of warrants for searching the office premises of the Society as well as the house of the petitioner was in excess of the powers of the court.

6. For the reasons given above, the petitioner will not be entitled to question the proceeding before the Chief Judicial Magistrate :. Hence Criminal Miscellaneous petitions Nos. 2846 and 2847 of 1976 will stand dismissed. In view of the dismissal of the main petition and the petition for interim stay, no orders are necessary in Crl. Misc, Petition. No. 3062 of 197(5.


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