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Sorualingam Chettiar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case No. 206 of 1955 and Criminal Revn. Petn. No. 199 of 1955
Judge
Reported inAIR1955Mad685; 1955CriLJ1602
ActsConstitution of India - Article 20(3); Code of Criminal Procedure (CrPC) , 1898 - Sections 96(1) and 165
AppellantSorualingam Chettiar and anr.
Advocates:C.N. Chary and ;R. Srinivasan, Advs.
Cases ReferredM.P. Sharnla v. Satish Chandra
Excerpt:
- - or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk, and they would all be as safe as if they had been lodged in the bank of england. 6. in my opinion there is no illegality about the order complained of......constitution. subsequently, the complainant filed an application on 1-11-1954 for the issue oi a search warrant and on that the sub-magistrate issued notice to the accused. thereupon the accused came to this court a second time complaining that the sub-magistrate ought not to have entertained, the memo for the issue of a general search warrant, somasundaram j. who heard that revision petition allowed it and quashed the notice. he expressed himself thus :'the notice to the petitioner to show cause why his premises should not be searched practically amounts to stating that either he produces the documents or else the premises will be searched. to avoid the search the petitioner is likely to come forwad with the production of the documents himself. instead of directly compelling him to.....
Judgment:
ORDER

Balakrishna Ayyar, J.

1. The petitioner was charged by the Assistant Inspector of Labour, Karaikudi, before the Sub Magistrate of Karaikudi with having contravened certain provisions of the Madras Shops and Establish, merits Act. The complainant also filed an application for the issue of summons to the accused for the production of certain documents in his custody. That application was granted by the Sub-Magistrate. The Accused then came to this Court in revision and a Bench of this Court, following the. decision of the Supreme Court in M.P. Sharnla v. Satish Chandra, : 1978(2)ELT287(SC) (A), set aside the order of the Magistrate. They took the view that to require all accused person to produce a document in his custody by issuing a summons to him would amount to testimonial compulsion and therefore be repugnant to Article 20(3) of the Constitution. Subsequently, the complainant filed an application on 1-11-1954 for the issue oi a search warrant and on that the Sub-Magistrate issued notice to the accused. Thereupon the accused came to this Court a second time complaining that the Sub-Magistrate ought not to have entertained, the memo for the issue of a general search warrant, Somasundaram J. who heard that revision petition allowed it and quashed the notice. He expressed himself thus :

'The notice to the petitioner to show cause why his premises should not be searched practically amounts to stating that either he produces the documents or else the premises will be searched. To avoid the search the petitioner is likely to come forwad with the production of the documents himself. Instead of directly compelling him to produce by means of a summons, this notice to show cause will practically have the same effect in an indirect manner--this notice therefore will amount to a testimonial compulsion and will stand on the same footing as the summons to produce the same documents.'

In other words, the learned Judge quashed the notice on the ground that it was only an indirect or oblique form of the original summons.

2. Thereafter the Assistant Public Prosecutor applied to the Sub-Magistrate for the issue of a search warrant under Section 96(1) para 3, Criminal P. C. and . the learned Magistrate granted the prayer. The petitioner has now come to this Court a third time to have the order quashed.

3. Now, though by reason of Article 20(3) of the Constitution a Court is precluded from issuing summons to an accused person to produce any document or thing in his custody, no article of the Constitution prohibits either a search under Section 165, Criminal P. C. by the police of premises involved in a cognizable 'offence or the issue of a search warrant by a Magistrate whet her the offence involved is cognizable or non-cognisable. It is easy to see where a different view . would lead us. A person may commit a murder and bury the body in the backyard of his house and he may commit burglary and keep the loot in an almirah inside his house. Or he may commit cheating and keep the proceeds thereof in a drawer of his writing desk, and they would all be as safe as if they had been lodged in the Bank of England. The Constitution is not intended to be a charter for the lawless and there is nothing in Article 20 of the Constitution or in any of its other articles to prohibit the police from searching either the person of the accused or the premises in the manner laid down by Criminal P. C. Nor have the powers of the Magistrate to issue a search warrant in the circumstances set out in the Code been abrogated by the Constitution. It is therefore impossible to say that the order of the learned Sub-Magistrate contravenes any article of the Constitution.

4. But, Mr. Chari strongly argued that in the circumstances of this particular case no order should have been made for the issue of a warrant. According to him, the action of the Magistrate in issuing the warrant really amounts to circumventing, if not flouting, the order of Somasundaram J. I am unable to agree. Somosundaram J. did not say one word about the merits of the case in his order; be did not express the view that, in the circumstances of the case it would be an improper thing to issue a search warrant. What he decided was that the issue of a notice would be an indirect form of summons and, therefore, a contravention of Article 20(3) of the Constitution.

5. Mr. Chari, the learned advocate for the petitioner, enquired whether if a warrant cannot be issued after notice, it would not be more improper to issue a warrant ex parte? Put that way the argument would appear to have force but then I am not quite sure that the view expressed by Somasundaram J, is an unassailable one. Besides the compromise between the security of the public and the liberty of the individual involved in prohibiting the issue to an accused, person of summons while at the same time permitting the issue of a search warrant in respect of property in his possession and the consequences that flow from such compromise might as a matter of abstract theory appear illogical. Constitutions, however, are built on compromises and not on abstract logic.

6. In my opinion there is no illegality about the order complained of. This revison petition is therefore dismissed.


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