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K. Hoshide and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1940Cal97
AppellantK. Hoshide and anr.
RespondentEmperor
Cases ReferredMahomed Jackariah & Co. v. Ahmed Mahomed
Excerpt:
- sen, j.1. the point involved in this rule relates to the propriety of an order of the-chief presidency magistrate issuing a search warrant under section 96, criminal p.c. the facts briefly are these. on 4th april 1939, mr. p.k. mukherjee, assistant commissioner of the calcutta police in the detective department, addressed a letter to the chief presidency magistrate, calcutta. as the decision of this matter will depend largely on the effect and interpretation of this letter i reproduce it in full below:(a)1. messrs. toyo menka kaisha ltd., 4, clive ghat street.2. pannalal sagarmal, 112, cross street.3. meghraj kanaiya lal, 2nd floor, 113, monohar das katra.4. b.m. kharwar, 1st floor, 161, harrison road.5. khanna and co., 35, cross street.6. jewan ram ganga ram, 35, cross street.7......
Judgment:

Sen, J.

1. The point involved in this rule relates to the propriety of an order of the-Chief Presidency Magistrate issuing a search warrant under Section 96, Criminal P.C. The facts briefly are these. On 4th April 1939, Mr. P.K. Mukherjee, Assistant Commissioner of the Calcutta Police in the Detective Department, addressed a letter to the Chief Presidency Magistrate, Calcutta. As the decision of this matter will depend largely on the effect and interpretation of this letter I reproduce it in full below:

(A)

1. Messrs. Toyo Menka Kaisha Ltd., 4, Clive Ghat Street.

2. Pannalal Sagarmal, 112, Cross Street.

3. Meghraj Kanaiya Lal, 2nd floor, 113, Monohar Das Katra.

4. B.M. Kharwar, 1st floor, 161, Harrison Road.

5. Khanna and Co., 35, Cross Street.

6. Jewan Ram Ganga Ram, 35, Cross Street.

7. Bisweswar Lal Chiman Lal, Groundfloor, 174, Harrison Road.

8. Hazarimal Hiralal, 60, Cross Street, and 148, Cotton Street.

9. Jewanram Periwal, 1st floor, 113, Monohar Das Katra.

(B)

1. Bholaram Mussuddi, P. 22, New Jagannath Ghat Road,

2. Kanaya Lal Tharar, 1, New Jagannath Ghat Road.

3. Nagarmal Bhawalka and 4, Indra Chand Bhawalka, 10, Vivekananda Boad, 3rd floor.

To

The Chief Presidency Magistrate, Calcutta.

Sir,

I have the honour to submit that information has been received from the Collector of Customs, Calcutta, to the effect that systematic undervaluation of cotton piece goods assessable to duty on market value, resulting in considerable loss of revenue to the Government, is being committed by the marginally noted, parties (marked A) assisted by and in conspiracy with four persons named in the margin (marked B) for a number of years, in contravention of the Sea Customs Act and to cheat the Government.

I therefore pray that search warrant may be issued to search the firms and residences of these persons immediately, to seize documents, account books and other papers of the years 1936-39.

I have the honour to be,

Sir,

Your most obedient servant,

P.K. Mukherjee.

Assistant Commissioner of Police

Detective Department, Calcutta,

4th April 1939.

2. Acting on this letter and on no further materials, so far as we are aware, the learned Magistrate issued a search warrant which is reproduced below:

Bengal Form No. 3919, High Court Criminal Process No. 10. Warrant to Search After Information of a Particular Offence (No. 8, Schedule 5, Act 5, 1898) (Section 96, Criminal P.C.).

(1) Name and designation of the police officer or other person or persons who is or are to execute the warrant.

(2) Information has been laid or complaint has been made.

(3) Commission or suspected commission.

(4) Mention the offence concisely.

(5) Specify the thing clearly.

(6) Now being made or about to be made.

(7) Offence or suspected offence.

(8) The thing specified.

(9) Describe the house or place or part thereof, to which the search is to be confined.

To (1) Assistant Commissioner of Police Detective Department-Whereas (2) information has been received before me of the (3) commission of the offence of (4) Sea Customs Act and conspiracy to cheat Government and it has been made to appear to me that the production of (5) documents, account books and other papers for the year 1936-37, 1937-38, 1938-39 is essential to the enquiry (6) now being made into the said (7) offence. This is to authorise and require you to search for the said (8) documents etc. in the (9) firm of Messrs. Toyo Menka Kaisha Ltd. 4, Clive Ghat Street, and if found to produce the same forth-with before this Court, returning this warrant with an endorsement certifying what you have done under it immediately upon its execution. Given under my hand the seal of the Court, this 4th day of April 1939.

(Sd.) Rule Gupta,

Chief Presidency Magistrate, Calcutta,

Calcutta 4th April, 1939.

(Return on the back of the search warrant duly executed with the properties seized as per search list attached.)

(Sd.) S.N. Mukherjee

Inspector D.D. 4th April, 1939.

3. I wish to emphasize the fact that the learned Magistrate states in the warrant that he was issuing it on the ground that it appeared to him that the documents wore essential 'to the enquiry now being made into the said offence' because as I shall show later there was really no enquiry within the meaning of Section 96, Criminal P.C., being made into any offence at the time the warrant was issued. Empowered with this warrant the police seized numerous books of accounts and other documents belonging to 'Toyo Menka Kaisha Limited,' a Japanese trading company doing business at Calcutta. Petitioner 1 Hoshide is the agent of the company and petitioner 2 is its shipping clerk. The books and documents which included current account books, codes, contracts, etc. were not produced before the Court by the police but made over to the customs authorities. To this objection was taken on behalf of the company. The learned Chief Presidency Magistrate after hearing their objections passed orders that the books should be retained by the customs authorities and that the company should be given free access to the books. There was a further direction that the books should be returned by 11th April 1939. Thereafter several extensions of time were obtained by the customs authorities and the police. On 8th July 1939 the solicitor to the Government of India appeared on behalf of the Crown and stated that the 'Japanese Firm' would be prosecuted for offences under the Penal Code and Sea Customs Act. On 21st July 1939 the police arrested the petitioners who were enlarged on bail on the same date. The challan or charge sheet against the petitioners had not yet been submitted to the Court.

4. On 7th August 1939 the petitioner made the present application praying for the return of the documents seized and for a, discharge from their bail and obtained a rule. On 18th August 1939 the police submitted a charge sheet against the petitioners charging them with the commission of certain offences. We are not now concerned with that part of the rule relating to the discharge of the petitioners from their bail as they have now been sent up for trial and are on bail. What we are concerned with is the order of the learned Magistrate issuing the search warrant. The facts stated above show that the current account books, codes and other documents of a trading company were seized by the police on 4th April 1939 and that they have not yet been returned to the company and that the police did not draw up a 'challan' or charge sheet against the accused till four months after the seizure of the documents. It is hardly necessary to say that the business of this trading company must have suffered very great loss and inconvenience by reason of these events and it will have to be seen whether there was any justification at law for what has happened. This leads me to consider the grounds on which the learned Magistrate issued the search warrant. The learned Magistrate says in his explanation that he issued the warrant acting under Clause 3 of Section 96(1), Criminal P.C., which is as follows:

Where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search-warrant : and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

5. He then goes on to say:

I am informed that the charge sheet is about to be submitted against the applicants by the police so that there has been an enquiry under the Code resulting in prosecution of the applicants.

6. This explanation of the learned Magistrate and the statement in the search warrant that 'the documents were essential to the enquiry now being made into the said offence' can leave no room for uncertainty in anybody's mind as to the reasons which (impelled the Magistrate to issue the search warrant. The learned Magistrate considered that the investigation by the customs authorities and the Calcutta Police constituted an enquiry under the Code and that as there was such an enquiry pending at the time of the application for a search warrant he was justified under the law in issuing it. In my opinion the learned Magistrate has gone utterly wrong and he has issued a warrant upon a complete misconception of the law. He has not borne in mind the clear distinction made by the Code between an inquiry and an investigation. He has treated the terms as being synonymous. 'Inquiry' is explained in Section 4, Clause (k) of the Code thus: 'Inquiry includes any inquiry other than a trial conducted under this Code by a Magistrate or Court.' Investigation on the other hand is explained in Section 4, Clause (1) which says

'investigation' includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

7. Thus it is clear that an 'inquiry' relates Ito a proceeding held by a Court or a Magistrate while an investigation relates to the steps taken by a police officer or a person other than a Magistrate. It is quite evident from these explanations that the learned Magistrate was wrong when he said that there had been an enquiry before a charge sheet had been submitted and when he said in the warrant that he was issuing a warrant because the documents were essential to the enquiry which was 'now being made' and that he was confusing 'inquiry' with 'investigation.' This confusion in the mind of the learned Magistrate has led to a misapprehension of the true import of Clause 3 of Section 96(1) under which according to him he issued the search warrant. I do not propose to deal with or interpret the other clauses of this Section, firstly, because the learned Magistrate in issuing the warrant did not call into aid his powers under these clauses, and secondly because those clauses can have no possible application to the circumstances of this case.

8. Now Clause 3 of Section 96(1), Criminal P.C., has nothing whatsoever to do with an investigation. It does not provide for any step to be taken in aid of an investigation but it provides for something which the Magistrate may do for the purposes of serving an inquiry, trial or other proceeding under the Code. The word 'investigation' is omitted in this clause. In Section 94, Criminal P.C., which provides for the issue of a summons to produce a document the words used are 'investigation, inquiry, trial or other proceeding.' It is clear therefore from this omission of the word 'investigation' that the Legislature did not provide for action under Clause 3 of Section 96(1) for the purpose of an investigation. A Magistrate who utilizes this clause with a view to help in the investigation of an offence does something which the Code does not sanction. He cannot act under this clause unless after consideration he is satisfied that the purposes of an inquiry or trial or other proceeding will be served by a general search. In the present case it is quite clear that the learned Magistrate when he issued the warrant did not have in mind any inquiry, trial or other proceeding. He issued the warrant to help the investigation by the police and the customs authorities. This Clause 3 of Section 96(1) does not empower him to do.

9. On behalf of the Crown it was argued that for a Magistrate to use his powers under this clause it was not necessary that there should be an inquiry, trial or other proceeding pending at the time the search warrant was issued and that a Magistrate could use his powers under this clause in anticipation of such inquiry or trial. Mr. Banerjee on behalf of the petitioners contends that the plain meaning of the words of the clause indicates that there must be an inquiry pending at the time the warrant was issued. In my opinion the contention of the Crown in this respect is the correct one. The Judicial Committee of the Privy Council has interpreted this Clause in Clarke v. Brojendra Kishore Roy (1912) 39 Cal 953. Lord Macnaghten delivering the judgment of their Lordships says at pp. 965 and 966 that a warrant may be issued under Clause 3 of Section 96(1) before any proceedings are initiated and 'in view of an enquiry about to be made' and he refers to the form of the warrant given in Schedule 5, Criminal P.C., in support of this view. In this form the words used are 'essential to the enquiry now being made or about to be made into the said offence or suspected offence.' Mr. Banerjee says that this is an 'obiter dictum' and invites us to take another view. Whether this be an 'obiter dictum' or not we are bound by it. When the Privy Council interprets a Section or lays down a principle of law this Court is bound to follow the interpretation or principle whether it is obiter or not. This was laid down by the Privy Council in Mata Prasad v. Nageshar Sahai . This is what their Lordships say:

In view of the peculiar course adopted by the Subordinate Judge in dealing with this case and in order to prevent other Courts in India from falling into the same error, their Lordships think it desirable to point out that it is not open to the Courts in India to question any principle enunciated by this Board, although they have a right of examining the facts of any case before them to see whether and how far the principle on which stress is laid applies to the facts of the particular ease.

10. When therefore the Privy Council has laid down that Section 96 applies not only when there is an enquiry pending but also when an enquiry is about to be made I must hold that a search warrant may be issued legally even though there be no enquiry pending. This however does not help the Crown at all in the circumstances of this case. There is nothing to show that the learned Magistrate issued the warrant because he thought that there was an enquiry about to be made and that the issue of the warrant would help the enquiry. He issued the warrant because he thought that it would help the police or the Customs authorities in their investigations. This, as I have said before, is no ground for issuing a search warrant under Clause 3 of Section 96(1).

11. Section 96 empowers only a Court to issue a search warrant. The learned Chief Presidency Magistrate was therefore acting as a Court when he issued the warrant and before he did so he should have applied his judicial mind to the question whether there were sufficient grounds before him for the issue of the warrant. I need hardly say that a search warrant is not to be issued automatically or for the mere asking. It can only be issued when the Court considers that the purposes of an enquiry would be served. The provision that it is only a Court that can issue the warrant and that the Court will issue it only after consideration is sufficient indication of what is required of a Magistrate when he deals with such applications. The Magistrate must apply his judicial mind to the question and must satisfy himself that the issue of the warrant is necessary and that the requirements of the law for the issue of the warrant are present. He must see whether there are sufficient materials before him to justify the drastic action which he is being invited to take. When it appears that a Magistrate has not applied his mind in this way and when it appears that action has been taken on insufficient material this Court will always interfere. In this connexion we have been referred to the cases in T.R. Pratt v. Emperor (1920) 7 A.I.R. Cal 43 and Jagannath Agarwalla v. Emperor : AIR1927Cal352 by Mr. Banerjee. Although the facts of these cases are somewhat different from those of the present one and although in the latter case, Newbould J. did not agree entirely with the view of Chaudhury J. on certain matters, nevertheless these cases are helpful in the determination of question involved in the present case as both the Judges hold in both the cases that a search warrant should not be issued merely to help an investigation and that it should not be issued unless there was an enquiry pending or about to be made. They also say that a search warrant should not be issued as a matter of course on the bare statement of a police officer that a search was necessary.

12. As I pointed out in the earlier part of my judgment a trading company has been deprived of its account books, codes and other papers both current and for previous years for several months. Any one having to deal with commercial matters will realize the great and probably irreparable loss which this action has entailed. What were the materials upon which the learned Magistrate took action? They consisted of a bare statement in writing by an Assistant Commissioner of Police that

information had been received from the Collector of Customs, Calcutta to the effect that systematic undervaluation of cotton piecegoods, assessable to duty on market value resulting in considerable loss of revenue to the Government is being committed, etc.

13. The learned Magistrate did not examine either the Police Officer or the Collector of Customs. He did not try to ascertain the nature of the information the Collector of Customs had whether the information was reasonably reliable and sufficient to indicate prima facie that the petitioners had committed the offence mentioned nor did he try to ascertain the necessity of the immediate seizure of such a variety and volume of documents as was asked for, viz., 'documents, account books and other papers of the years 1936-1939.' In acting on the bare statements contained in the letter of the Assistant Commissioner of Police without any further enquiry the learned Magistrate failed to perform the duties and take the precautions which the law requires him to perform and take before he issued a warrant for a general search. In my opinion the -warrant was issued on insufficient materials and was not justified in law.

14. I have dealt at some length with this matter out of deference to the wishes of the learned Magistrate who in his explanation asks that this Court should lay down principles for the guidance of the Magistrates and the police and also because I wish to impress upon the learned Magistrate that the issue of a warrant for a general search should not be made light-heartedly. It is undoubtedly the duty of Magistrates to aid to the utmost the authorities engaged in the detection and investigation of crime but such aid must be given in accordance with the provisions laid down by the law. Magistrates should also constantly bear in mind that they have an equally important duty to the public to see that no one is subjected to avoidable hardship and inconvenience and they should take no measures which would cause such hardship and inconvenience unless such measures are imperatively necessary for the purposes of the detection, prevention or punishment of crime. I wish to make it perfectly clear that nothing that I have said is intended to cast any aspersion whatsoever on the fairness or good faith of the learned Chief Presidency Magistrate. I have had occasion to see his work and I have found him to be able, fair and conscientious to a high degree. In the present case there has been an error due to a misconception of the law and it is therefore necessary for us to set the matter right. In these circumstances I agree with my learned brother in the order that he is about to pass, viz., that the rule so far as it relates to the documents seized should be made absolute and that the documents seized from the petitioners should be returned to them forthwith.

Khundkar, J.

15. I agree but desire to add a few observations which arise in connexion with the arguments regardiag the construction of Section 96, Criminal P.C., which have been addressed to us. We are concerned at this stage with only the second part of the rule which is in these terms : 'to show cause why the books of account seized under the search warrant should not be restored to the company.' The power to issue a general search warrant is conferred by Section 96(1), Criminal P.C. The sub-section is divided into four clauses which for purposes of easy reference I will designate by the letters (a) to (d) although they are not so numbered in the statute, Section 96(1):

(a) Where any Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under Section 95, Sub-section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, (b) or where such document or thing is not known to the Court to be in the possession of any person, (c) or where the Court considers that the purposes o any inquiry, trial or other proceeding under this Code will be served by a general search or inspection and (d) it may issue a search-warrant : and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained.

16. Clause (a) relates back to Sections 94 and 95, and refers to those classes of cases in which the Magistrate has power to issue under Section 94 a summons, or under Section 95 a requisition, to produce a document or thing. We are not concerned with any requisition under Section 95, but only with the category of cases contemplated by Section 94(1). The words of that Section so far as they are material for the purposes of the present discussion are as follows:

Whenever any Court...considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court...such Court may issue a summons...to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it....

17. It would be convenient to set out again here the definitions of enquiry and investigation contained in the Code. These are to be found in Section 4(1) Clauses (k) and (1). Clause (k) is in the following terms : 'inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or Court;' it is to be noted that inquiry is not intended to include anything done by any authority other than a Magistrate or Court. Clause (1) is as follows:

Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

18. It is to be observed that a proceeding by a police officer for the collection of evidence would answer the definition of investigation only if it were a proceeding under the Code. In the present case, the letter of the Assistant Commissioner on which the Magistrate took action shows that the petitioner's books were not required for the purposes of any inquiry, trial or other proceeding under the Code, by or before the Court, but whether they were required for an investigation may be considered. The letter prays that a search warrant may be issued and recites that an 'information' was 'received from the Collector of Customs Calcutta to the effect that systematic undervaluation of cotton piecegoods assessable to duty on market value resulting in considerable loss of revenue to the Government ' was being committed by several persons...'in contravention of the Sea Customs Act and to cheat the Government.' It is quite obvious that the customs authorities wanted an examination of the books in order to see what materials they would afford in support of the information which had come into their possession. Such an examination would have had to be carried out either by customs officers or by the police. In neither event would it have been an investigation under the Code. In In re Mahomed Tahir (1934) 21 A.I.R. Bom. 1004, it was held that such a proceeding by the customs authorities was not an investigation under he Code. An examination of the petitioner's books by the Calcutta police would also have failed to satisfy the definition of investigation, because the Calcutta police have no power to conduct proceedings under the Code for the collection of evidence, since the provisions of Ch. 14 which confer such power have not been extended to the police in Calcutta, and no provision of the Code applies to them unless expressly extended : see Section 1, Sub-section (2). If authority were needed it is to be found in Queen-Empress v. Nilmadhab Mitter (1888) 15 Cal 595 (F.B.). In that case it was held that the provisions of Section 164 had no application to statements taken in the course of a police investigation made in the town of Calcutta. At p. 606 of the report the matter is thus stated:

Section 164 deals with statements made to a Magistrate in the course of an investigation under Ch. 14 of the Act, and the point for consideration is, whether the investigation, in the course of which the statement in question was made, was an investigation under that chapter.

The investigation was by the Calcutta police in the town of Calcutta, and unless there is some specific provision making Ch. 14 applicable to the police in Calcutta, the section does not apply, as the statement was not made in the course of an investigation under the Chapter.

19. Mr. Banerjee has with his usual fairness, indicated that in a non-cognizable case it might be possible to vest the police with powers of investigation under the Code by means of an order made by a Magistrate under Section 155(2). It is unnecessary to speculate whether this would have the effect of converting an examination by the Calcutta police of documents into an investigation, because in fact no such order was thought of in the present case. The provisions of Section 94(1) do not seem to have been considered at all, and there is nothing to indicate that the Magistrate had reason to believe that if a summons had been issued to the petitioners under that Section, they would not have produced the documents in question. It follows that the Magistrate's action is not covered by Section 96(1) Clause (a) and it is clear that Clause (b) had no application. There remains Clause (c), and the learned Magistrate's explanation in answer to the rule shows that in his opinion his order ought to be considered justified under that clause. Certain portions of the explanation require to be quoted:

In the present case, the police report on which I issued search warrant definitely stated that the suspected offences, into which inquiry was about to be made, were under the Indian Penal Code as also the Sea Customs Act and I submit that my order was justified. I agree however that the original application by the police (dated 4th April 1939) might have been a little more explicit, and the warrants themselves might have been more explicit.... I am informed that the charge sheet is about to be submitted against the applicants by the police, so that there has been an inquiry under the Code resulting in prosecution of the applicants.

20. What I have quoted from the learned Magistrate's explanation indicates that ha has confused 'inquiry' with 'investigation' and has failed to appreciate the fact that an examination of the documents seized whether by the Customs authorities or by the police of Calcutta would not be even an 'investigation.' Mr. Chatterjee on behalf of the Grown has submitted that the Magistrate's order was justified by the language of Clause (c), because the Magistrate really considered that the purposes of a trial would be served thereby. As against this it has been contended by Mr. Banerjee firstly, that the Magistrate not having taken cognizance of any offence, there was no trial the purposes of which could have been served by a general search or inspection; and secondly, that the words 'when the Court considers' require that the Magistrate should bring a judicial mind to bear upon the material before him, and that he should refuse to issue a search warrant unless those materials are sufficient to persuade his judicial mind that the purposes of an inquiry, trial or other proceeding under the Code would be served by such an order. In regard to the first branch of this contention, I can find no warrant for it in the language of Clause (c), nor is it supported by any judicial pronouncement binding on this Court. The trial, referred to in this clause might very well be one in which cognizance within the meaning of Section 190 had yet to be taken. This view is justified by the language of Form 8 of Schedule 5 of the Code which is in these terms:

Whereas information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of (mention the offence concisely) and it has been made to appear to me that the production of (specify the thing clearly) is essential to the inquiry now being made or about to be made into the said offence or suspected offence;

This is to authorize and require you to search. etc.

21. In Clarke v. Brojendra Kishore Roy (1912) 39 Cal 953 at p. 966 it was observed by Lord Macnaghten, who delivered the judgment of the Judicial Committee of the Privy Council (p. 966 of the report) that the form contemplates the issue of a search warrant before any proceedings of any kind are initiated. Mr. Banerjee has argued that this observation is obiter, but upon a careful reading o the judgment I am not quite convinced that it is merely that. Be that as it may, I consider the observation to be binding on this Court. In my judgment it is necessary to consider Clause (1) along with Clause (c). Clause (d) authorizes the person to whom the warrant is directed to search or inspect in accordance therewith, and it seems to me to be reasonably clear that the word ' inspect' must contemplate a step to be taken after the seizure of the documents or things concerned has been effected. In the context in which it occurs it implies a capacity to scrutinize the materials seized for purposes of any inquiry, trial or other proceeding under the Code. There are no words which limit scrutiny to the purposes of a trial already launched. Indeed when documents or things are involved the effective prosecution of a criminal trial would generally be impossible unless the prosecutors were permitted to examine the documents or things at a very early stage, and) it is only reasonable to assume that the Legislature was alive to such a consideration.

22. In my judgment the language of Clauses (c) and (d) read together justify a search warrant for materials an examination of which is required for the purposes of a trial note yet actually embarked upon. In Mahomed Jackariah & Co. v. Ahmed Mahomed (1888) 15 Cal 109 it was held that documents of an accused person brought into Court by virtue of a search warrant under Section 96 could be, used in evidence against him and that the Legislature intended that the prosecutor should, under the order of the Court, have the power to inspect them and determine whether they should get in as evidence. In the judgment delivered by Ghose J. he referred to Chap. 14 of the Code and the powers of the police thereunder to search and to seize articles and then went on to make the following observation which appears at page 142 of the report:

When therefore upon search a police officer finds any documents which lie thinks necessary for the investigation of the case he has to forward the same to the Court; and this he does evidently under Section 170; and he requires the complainant to appear before the Magistrate and prosecute the case. Now, it is obvious that in the very nature of things the prosecutor would have an opportunity of looking at the documents thus seized, and it is difficult to conceive that if in the case of a search and seizure by the police the prosecutor necessarily inspects the documents or articles seized the Legislature intended that he should not have the same opportunity or privilege where under the order of the Court any particular document or other thing is seized under a search warrant and brought up to the Court.

23. In In re Lakhmidas Naranji (1903) 5 Bom. L.R. 980 it was pointed out that though the Code was amended several years after the decision in Mahomed Jackariah & Co. v. Ahmed Mahomed (1888) 15 Cal 109 the Legislature allowed the Section to remain as it was when that case was decided thus indicating that the Legislature adopted the construction put upon the Section by this Court. In the Bombay case it was held that when the Magistrate's jurisdiction to order production of a document comes into play that carries with it the jurisdiction to allow the prosecution the right of inspection. In Ajoy Krishna v. S.G. Bose : AIR1929Cal176 it was held following the case in Mahomed Jackariah & Co. v. Ahmed Mahomed (1888) 15 Cal 109 that once articles are brought before the Court in execution of a search warrant, inspection thereof may be allowed to the complainant.

24. Seizure and inspection are however sub-servient to the paramount condition that the Court should consider that such steps will serve the purposes of an inquiry, trial or other proceeding under the Code. As my learned brother has pointed out the word 'investigation' is omitted from Clause (c) of Section 96(1) which indicates that a Court acting under that clause may not order seizure for purposes of an investigation. As stated above investigation means a proceeding by the police under the Code for the collection of evidence. I agree entirely that the Court cannot when acting under Clause (c) order the seizure and production of documents for the sole purpose of enabling the police to collect evidence or to search for evidence. But that does not amount to saying that the Court may not make an order for seizure to be followed by an inspection by the prosecutor where the Court judicially considers that seizure and inspection will serve the purposes of any inquiry, trial or other proceeding under the Code. The second branch of Mr. Banerjee's argument is concerned with the meaning of the words 'where the Court considers' and this has been dealt with in the judgment of my learned brother in which as I have said I concur. The result is that this rule must be made absolute. The books and documents seized under the search warrant in question are to be returned to the petitioner forth with.


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