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Superintendent and Remembrancer of Legal Affairs, Govt. of West Bengal on Behalf of the State of West Bengal Vs. Nandaram Agarwala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1342 of 1952
Judge
Reported inAIR1954Cal134
ActsTaxation on Income (Investigation Commission) Act, 1947 - Section 6(9); ;Code of Criminal Procedure (CrPC) - Sections 96 and 97; ;Code of Civil Procedure (CPC) , 1908; ;Taxation on Income (Investigation Commission) Rules - Rule 8(1)
AppellantSuperintendent and Remembrancer of Legal Affairs, Govt. of West Bengal on Behalf of the State of Wes
RespondentNandaram Agarwala
Appellant AdvocateS. Banerjee, Standing Counsel and ;Amiyalal Chatterjee, Adv.
Respondent AdvocateAjit Kumar Dutt and ;Nani Coomar Chakravarty, Advs.
DispositionPetition allowed
Excerpt:
- .....offices, outhouses and other places of the premises, the whole of which was mentioned in the search warrant as one of the places to be searched viz., 47 khengrapatty street, calcutta.5. that the learned magistrate is not right in limiting this part of the warrant to 'compound, offices, and out-houses or other places in the locality' to no. 47 khengrapatty street seems to us to be obvious enough. on a proper construction of this warrant of authorisation, the first part of which refers to the information which the commission had before it and on the strength of which they were issuing the warrant of authorisation. the places to be searched are mentioned in (a), and although the expression 'any other place or places' in that part of the warrant is not qualified by the phrase 'in that.....
Judgment:

Guha Rav, J.

1. This is a petition by the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, on behalf of the State of West Bengal, Under Section436 Cr. P.C. for setting aside an order of discharge passed by Sri K. C. Sen, Presidency Magistrate, Calcutta.

2. It appears that the opposite party Nandaram Agarwala was prosecuted on charges Under Sections 353 & 332 I. P. C. for having obstructed certain public servants entrusted with the execution of a warrant at authorisation of a search of certain premises by the Income-tax Investigation Commission Under Section 6(8) of the Taxation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947). The learned Magistrate, although he examined a number of witnesses did not go into the evidence at all before discharging the opposite party Nandaram Agarwala, but discharged him on the sole ground that the authorised officials actually acted without jurisdiction in searching a room on the 3rd floor of 36 Armenian Street, because there was no mention in the warrant authorising the authorised official to search that room.

3. The relevant portion of the warrant of authorisation runs as follows :

'Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the cases compendiously known as the S. Jhabarmull group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17 Kalakar Street, Calcutta, (ii) 47, Khengraputty Street, Calcutta 7, and (iii) the second floor and adjoining rooms, 36, Armenian Street, Calcutta, compound, offices and outhouses or other places in that locality, This is to authorise and require you Sri H. C. Bhari, Authorised Official, Income-tax Investigation Commission (a) to enter and search with such assistance of Police Officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found.'

4. The learned Magistrate says that the authorised official when he broke the padlock of a room oh the 3rd floor of 36 Armenian Street, and entered and searched it, was clearly acting without jurisdiction because the words 'compound, offices and outhouses or other places in that locality' could not possibly have meant a room on the 3rd floor of 36 Armenian Street of which only the 2nd floor is specifically mentioned and that these expressions probably refer to the compound, offices, outhouses and other places of the premises, the whole of which was mentioned in the search warrant as one of the places to be searched viz., 47 Khengrapatty Street, Calcutta.

5. That the learned Magistrate is not right in limiting this part of the warrant to 'compound, offices, and out-houses or other places in the locality' to No. 47 Khengrapatty Street seems to us to be obvious enough. On a proper construction of this warrant of authorisation, the first part of which refers to the information which the Commission had before it and on the strength of which they were issuing the warrant of authorisation. The places to be searched are mentioned in (a), and although the expression 'any other place or places' in that part of the warrant is not qualified by the phrase 'in that locality' which appears in the first part of the warrant, it seems to us to be clear enough from the fact that it is preceded by the phrase 'the said premises' which evidently refer to the premises mentioned earlier, that that qualification must be there.

For, otherwise, 'any other place or places' can be anywhere in Calcutta or even outside Calcutta. Such a construction evidently means that the places to be searched as mentioned in (a) need not necessarily be confined to the places mentioned in the first part, about which the commission had before it certain materials to act on. In other words, the commission must in that view, be deemed to have given the authorised official much wider powers to select the places to be searched than the information at its disposal warranted.

Leaving aside for the moment the question whether the commission was legally entitled to do this, and reading the two parts of the warrant together, we are clearly of opinion that nothing like such a wide and somewhat indefinite power was intended to be given to the authorised official and that 'any other place or places' in (a) of the warrant of authorisation refers to any other place or places in the locality as mentioned in the earlier part.

6. It has now to be considered what the precise significance of the expression 'compound, offices, and outhouses or other places in that locality' is. It is clear from the warrant of authorisation that 'the said premises' in (a) mean the three premises which are specifically mentioned earlier, viz., the third floor of 17 Kalakar Street, Calcutta, 47 Khengraputty street, Calcutta 7, and the 2nd floor and adjoining rooms of 36 Armenian Street, Calcutta, and then follows the expression, 'Compound, offices and outhouses and other places in that locality'. It is with this expression that we are now concerned here.

That the expression 'compound, offices and outhouses and other places' is qualified by the phrase 'in that locality' goes without saying. The whole dispute now centres round the exact meaning of this qualifying phrase 'in that locality'. Does it mean the locality as defined by the three places specifically mentioned or does it mean something less precise? That there is an element of indefiniteness in the phrase cannot perhaps be seriously disputed and yet it is not certainly so vague as to render it completely unworkable, for it does convey a clear idea as to where in fact these other places are to be looked for. 'In that locality' literally means 'in that neighbourhood' and that again in the context in which the phrase is used, evidently means the neighbourhood of the three premises specifically mentioned and not merely of the premises, 47 Khengraputty Street, the whole of which was included in the warrant for the purpose of the search, as held by the learned Magistrate. To limit the qualifying phrase 'in that locality' to only one of the premises rather than to all evidently offends against the rule of grammatical construction.

7. Prom the view we have already taken about the intended qualification of the phrase in (a), namely 'any other place or places' by the phrase 'in that locality', it then necessarily follows that 'any other place or places' in (a) must be in the neighbourhood of the three premises mentioned in the first part of the warrant. That the third floor of 36, Armenian Street is in the neighbourhood of its second floor admits of little doubt. In this view, the third floor of 36 Armenian Street was clearly included in the warrant and it is a complete misreading of the warrant of authorisation to confine this expression to places in the neighbourhood of 47 Khengraputty Street alone, instead of places near about all the three places specifically mentioned. The learned Magistrate was therefore, clearly wrong in construing the warrant of authorisation.

8. Mr. Dutt on behalf of the opposite party has further argued first that the Commission was not entitled under the statute to issue something like a roving commission to the authorised official to search at his sweet will any place or places he liked and if the commission had not specified the places to be searched in such details as placed the identity of the places to be searched beyond dispute, the warrant would be clearly illegal, because in that case the statute would be clearly arming the commission with powers to issue a vague warrant of authorisation so as to leave to the authorised official an unfettered discretion in selecting the places to be searched and such a construction of the statute would be unreasonable; secondly that the commission was not actually expressly authorised to issue any warrant of authorisation, and finally that the powers of the Commission in this matter have to be exercised subject to the rules made under the Act and the rule lays down that the Commission has to be satisfied as to the exact buildings or places which have to be searched before they can issue a warrant of authorisation.

In deciding whether these arguments are correct or not, Section 6(9) and Rule 8(1) of the Rules under the Act have got to be construed. Section 6(9) runs as follows :

'Subject to any rules made in this behalf under this Act, any authorised official shall have power (i) to examine at all reasonable times any books of account or other documents which in his opinion will be useful for or relevant to the proceedings in any case under this Act;

(ii) if specially authorised in this behalf by the Commission, to enter any building or place where he has reason to believe that any such books of account or documents may be found;

(iii) to seize any such books of account or documents or place marks of identification thereon and make extracts or copies therefrom;

(iv) in the course of any search under this section, to make a note or an inventory of any other article or thing found in the course of such search which in his opinion may be useful or relevant to the disposal of any case under this Act; and the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), relating to searches, so far as can be made applicable, shall apply to searches made under the authority of this section.'

Rule 8(1) runs as follows :

'The Commission may, by a written order signed by the Chairman, or a Member or Secretary to the Commission, specially authorise an authorised official to enter buildings or places which there may be reason to believe contain books, documents or papers relevant to the proceeding in any case or cases under the Act, and such order may authorise the authorised official to do all or any of the following acts :

(a) to enter the premises with such assistance of police officer as may be required;

(b) to inspect and search the same and to place identification marks on such books, documents or papers as may be found therein and as are relevant to the proceedings in any case or cases under the Act, and to make a list of such books, documents or papers with particulars of the identification marks thereon;

(c) to make copies of or extracts from such books, documents or papers;

(d) to take possession of or seize any book, document or paper;

(e) to convey such books, documents or papers to the office of the authorised official or the Commission.'

9. It is clear from the Section as it stands, that the powers here contemplated are the powers not of the Commission at least directly but of the authorised official. The provision we are actually concerned with in this case is Section 6(9)(ii) where it is provided that if specially authorised in this behalf by the Commission, the authorised official shall have power etc. Mr. Dutt on behalf of the opposite party argues that although it is provided in this sub-clause that the authorised official can enter any building or buildings, if specially authorised in this behalf, by the Commission, there is no express power given to the Commission for issuing such a warrant of authorisation. Although the power has not been given expressely to the Commission to issue such a warrant of authorisation, obviously such a power was conferred by implication. For, without such a power the Commission could not obviously authorise the authorised official to enter etc., so that the phrase 'if specially authorised in this behalf by the Commission' with which this sub-clause begins would be rendered quite meaningless and infructuous. In order to avoid such a consequence, namely a virtual deletion of the opening words of the sub-clause, the power of the commission to issue such a special warrant of authorisation must clearly be implied. This disposes of the 2nd branch of Mr. Dutt's argument.

10. As regards the first branch of his argument viz., that the Commission cannot on a reasonable construction of Section 6(9) and Rule 8(1) issue a roving commission to an authorised official, without specifying clearly the place or places to be searched, it may be pointed out at once that as the Section stands, the powers of the Commission do not seem to be limited by any such consideration. If the terms of the Section without the Rule be looked at for the present, there is nothing to indicate that the commission is not entitled to issue even a general authority to an authorised official for searching any place or places where the authorised official has reason to believe that any such books of account or documents may be found. As already indicated, Section 6(9) lays down the powers of the authorised official. One of these powers is to enter any building or place where he has reason to believe that any books of account etc. referred to in Clause (1) of Section 6(9) and the condition precedent for the exercise of this power by the authorised official is that the commission must specially authorise him to exercise it.

The discretion which building or place he will search is entirely his. There is no indication la Section 6(9)(ii) that the commission in issuing this, special authority to the authorised official is obliged to specify the buildings or places to be searched, In the absence of anything to that effect it means that the Commission may or may not specify the buildings or places to be searched. If it chooses to specify them, the discretion of the authorised official is curtailed to that extent and: he is then bound to confine the search to the buildings or places mentioned, but even then he has a discretion to select from amongst them the places to be actually searched. In other words, he is not bound to search all of them and may search only those which he in his discretion thinks, are likely to yield on search useful materials. If the Commission does not specify the buildings or the places to be searched the discretion of the authorised official in this matter is absolutely unfettered. That seems to me the clear meaning of sec, 6(9)(ii), taken by itself. In short then, as Section 6(9) stands, there is no bar to the Commission issuing even a warrant generally authorising the authorised official to search any place where he has reason to believe useful books of account etc. may be found. It will be convenient at this stage to refer to the corresponding Sections of the Criminal Procedure Code, viz., Sections 96 and 97 which run as follows :

'Section 96(1) : 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.

Or where such document or thing is not known to the Court to be in the possession of any person,

Or 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.

(2) Nothing herein contained shall authorize any Magistrate other than a District Magistrate or Chief presidency Magistrate to grant a warrant to search for a document, parcel or other thing in the custody of the Postal or Telegraph authorities.

97 : The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified.'

11. It is clear from the terms of Sections 96 and 97 that a general search may be ordered and then it is not obligatory on a court issuing a search-warrant to specify in the warrant the particular place or part thereof which is to be searched, but if it does specify a place or a part thereof, the officer executing the warrant has to confine himself to the place or part thereof so specified. Section 96 makes use of the expression 'general search' and under Section 97 Cr. P. C. the Court issuing a search-warrant has a complete discretion as to whether to specify or not in the warrant the place or places to be searched.

Evidently then, even under the provisions of the Criminal Procedure Code, a court issuing a search warrant may issue a warrant for a general search without specifying the place or places to be searched, the discretion in such a case being left to the officer entrusted with the execution of the warrant to single out the places for search.

As we read Section 6(9)(ii), the powers of the commission in this matter are no more and no less than those of a court issuing a search warrant under the Criminal Procedure Code and in our opinion, as the Section stands, without the Rule, there is nothing in its terms to suggest that the Commission is debarred from issuing a warrant without specifying the place or places to be searched.

12. Now, if we look at the Rule, it is possible to argue that as it stands, it means that before the Commission issues a warrant, it should have reason to believe that books etc., will be available on a search of certain buildings or places. The Rule also admits of the construction that the 'reason to believe' mentioned in the Rule may be on the part of the authorised official as well. The rule does not make it clear whether it is on the part of the commission or on that of the authorized official that 'there may be reason to believe' and to the extent that it is capable of meaning that it may be on the part of either the commission or the authorised official, it does not really take away from the powers of the commission, conferred by Section 6(9)(ii) and leaves them untouched. If then the Section and the Rule be studied together, it seems to us to be fairly obvious that it is open to the Commission to issue a search-warrant even without specifying the buildings or places and leaving the discretion as to which buildings or places should be searched entirely to the authorised official.

13. As regards the reasonableness of this construction of Section 6(9)(ii) and Rule 8(1), all we need say is first that the construction we have put on them appears to us to be the plain literal meaning of the terms and when such is the case, it is not open to the courts to go behind the words and speculate on this expediency or reasonableness; and secondly, that the exigencies of a particular case amongst those for which special provision is made in this Act, just as the exigencies of a particular case amongst those which may call for the issue of a search-warrant under the Criminal Procedure Code may require a general search to be made without the place or places being mentioned in the warrant and when such particular cases are provided for in the law, along with other cases when a warrant with the places to be searched being mentioned is likely to suffice, that particular provision of law need not necessarily be dubbed unreasonable. Whether a measure is reasonable or otherwise depends more on the nature of the object it has in view, the state of affairs it seeks to remedy and its effectiveness as a remedy for that state of affairs than on anything in itself. From this point of view, the powers conferred on the commission, as we read in the section, are no more unreasonable than those conferred on courts by Sections 96 and 97 Cr. P. C.

14. The Commission in this particular case has not issued such a general warrant but what it has done, as already pointed out, is to specify the 3rd floor, 17 Kalakar Street, the 2nd floor and adjoining rooms of 36 Armenian Street, and the whole of 47 Khengraputty Street, and then to add the expression 'compound, offices, and outhouses or other places in that locality'. Instead of issuing a general warrant and leaving the discretion as to the places to be searched to the authorised official, after specifying certain places to be searched it has given a general indication as regards the other places to be searched viz., that these places etc., must be in that locality which obviously means in the neighbourhood of the three places specifically mentioned.

15. Mr. Dutt argued at one stage that because the Commission had in one part of this warrant mentioned certain places specifically, the phrase 'compound, offices and outhouses or other places in that locality' are really redundant and should be completely ignored, or in other words, that the warrant should be read with this expression deleted.

In our opinion that is hardly a permissible construction of the warrant. The powers, as already indicated, conferred on the Commission by Section 6(9), although not in the same words as in Sections 96 and 97 Cr. P. C., are practically identical with those conferred on courts by those sections. There is in this view nothing illegal in the warrant of authorisation, worded as a part of it, may be in terms not quite definite and precise.

16. The learned Magistrate, therefore, in our opinion, has construed the warrant of authorisation wrongly and his order discharging the opposite party must accordingly be set aside. As he has not dealt with the evidence, the case is sent back to him for considering whether on the evidence one or more charges should be framed against the opposite party.

17. The petition is allowed, the Rule is made absolute, the order of the learned Magistrate discharging the opposite party is set aside and the matter is sent back to him for further enquiry on the lines indicated.

Sen, J.

18. I agree.


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