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N.N. Meyyammai Achi Vs. Venkatachalam Chettiar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1951)1MLJ12
AppellantN.N. Meyyammai Achi
RespondentVenkatachalam Chettiar
Excerpt:
- - thereafter, an attempt was made by the sons of the complainant to have the release deed set aside on grounds of undue influence and inadequate consideration, which proved unsuccessful. jayarama aiyar, the learned counsel for the petitioner, which lay down that in issuing a search warrant under section 96, criminal procedure code, the magistrate should be satisfied that it is absolutely necessary to issue such a warrant, that the magistrate should exercise his judicial mind before issuing the search warrant under section 96, criminal procedure code, and that he must give his reasons for the issue of such a warrant. i am satisfied that this action of the learned magistrate is very highhanded, to say the least......in the presence of some mediators. on the same day he also filed an application for the issue of a search warrant without any independent affidavit in support of that application.3. the learned magistrate issued immediately a search warrant without satisfying himself about the necessity therefor, authorising and requiring the sub-inspector of police to search all the articles mentioned in the schedule to the order and to produce the same forthwith before that court. the search warrant authorised the sub-inspector not only to take hold of the documents standing in the name of the adoptive mother, i.e., the wife of the first accused, but also such of the documents as were in favour of meyyammai achi (the petitioner) alias visalakshi achi and all other items of properties as may be pointed.....
Judgment:
ORDER

Chandra Reddi, J.

1. This is a petition in revision to quash the search warrant issued under Section 96, Criminal Procedure Code, on 4th March, 1950, by the Additional Sub-Magistrate of Karaikudi under the following circumstances.

2. The first accused, who is the father of the second accused, the petitioner herein, adopted the complainant in June 1920. Sometime thereafter, that is, in or about the year 1929, misunderstandings arose between accused 1 and the complainant for reasons which it is unnecessary to state here and the complainant was living away from the first accused and his family. The partition of the family properties having been effected sometime in the year 1939, the complainant executed a release deed in consideration of his gaving received a sum of about a lakh of rupees. Thereafter, an attempt was made by the sons of the complainant to have the release deed set aside on grounds of undue influence and inadequate consideration, which proved unsuccessful. On 4th June, 1949, the first accused's wife died leaving behind her some stridhana property. Within a few months of the death of the first accused's wife, i.e., the adoptive mother of the complainant, the complainant filed a complaint before the Additional Sub-Magistrate of Karaikudi alleging that the stridhana properties belonging to his adoptive mother, which devolved on him under some custom or usage to be set up by him, and also certain documents which would prove his case, were in the possession of the first and second accused who have not delivered the same to him in spite of his oral request in the presence of some mediators. On the same day he also filed an application for the issue of a search warrant without any independent affidavit in support of that application.

3. The learned Magistrate issued immediately a search warrant without satisfying himself about the necessity therefor, authorising and requiring the Sub-Inspector of Police to search all the articles mentioned in the schedule to the order and to produce the same forthwith before that Court. The search warrant authorised the Sub-Inspector not only to take hold of the documents standing in the name of the adoptive mother, i.e., the wife of the first accused, but also such of the documents as were in favour of Meyyammai Achi (the petitioner) alias Visalakshi Achi and all other items of properties as may be pointed out by the complainant wherever they may be found.

4. The first and the second accused coming to know of the issue of the search warrant, when the Sub-Inspector, followed by a number of constables, went to their house, filed an application before the Magistrate for withdrawing the search warrant. But the learned Magistrate, without recalling the warrant, dismissed it making the following observation:

It is not desirable to recall the warrant. The Sub-Inspector will be asked to make out a list of the stridhanam properties of the deceased Alamelu Achi found in the house of A. 2 and send it to Court instead of sending the properties to Court for remand. The properties, if found, will be returned to her own custody on getting a bond from her for their production in Court when required.

It will be seen that no reasons are given even in this order why the search warrant was originally issued or why the Magistrate considered it undesirable to recall the warrant.

5. It is to quash this search warrant issued by the Magistrate that the present criminal revision petition is filed.

6. It is not desirable that I should express any opinion on the merits of the complaint itself. I will therefore content myself with dealing with the question of the legality and the propriety of the search warrant. As I have already stated, the Magistrate has not given any reasons for issuing the search warrant. Nor does it appear from the records, that the Magistrate has exercised his judicial mind in this case. It is not necessary to refer to the various cases cited by Mr. K.S. Jayarama Aiyar, the learned Counsel for the petitioner, which lay down that in issuing a search warrant under Section 96, Criminal Procedure Code, the Magistrate should be satisfied that it is absolutely necessary to issue such a warrant, that the Magistrate should exercise his judicial mind before issuing the search warrant under Section 96, Criminal Procedure Code, and that he must give his reasons for the issue of such a warrant. Nor is it necessary for me to deal with the cases which have been cited by the learned Counsel on the other side which are not quite relevant for the decision of the case before me. All that the cases cited by the learned Counsel for the respondent lay down is that it is quite competent for a Magistrate to issue a search warrant under Section 96, Criminal Procedure Code and that he need not wait for this purpose till a prima facie case has been established. I am satisfied that this action of the learned Magistrate is very highhanded, to say the least. I therefore allow the petition and quash the search warrant issued by the trial Magistrate under Section 96, Criminal Procedure Code. Anything done in pursuance of the search warrant will be withdrawn.


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