Asutosh Chaudhuri, J.
1. Search warrants were issued on the 21st December 1919 in this and other cases by the Chief Presidency Magistrate under Section 96, Criminal Procedure Code, on the application of Mr. Armstrong, an officer deputed by the Government of India to investigate into some alleged fraudulent transactions brought to its notice by the Comptroller, Munitions Board, Bengal Circle. We have dealt with the warrant which was issued against one Mr. Pratt. We found that it was not justified under Section 96 of the Criminal Procedure Code. The same ruling would have covered this case, had it not been for the explanation which the Magistrate has now submitted which differs on material points from the explanation then submitted. The learned Magistrate now says that he acted upon the petition coupled with the statements made by Mr. Armstrong, which he says he had every reason to believe and act upon. No reference to any statement made by Mr. Armstrong was made or even alluded to when he submitted his first explanation. All the search warrants were issued at the same time and, we understand, upon the same materials. The matter is one of very recent date and it is strange that the Magistrate omitted in the first case to mention that any statement was made by Mr. Armstrong when he presented his petition, if such statement taken with the allegations in the petition was the basis of his order.
2. When Mr. Pratt's matter was heard, the two lists referred to in paragraph 12 of the petition were not on the record. After the Rule was issued in this case, Mr. Armstrong, it appears, put in a petition before the Magistrate on the 13th January 1920 praying for the incorporation of copies of those lists certified by him as correct, if the originals could not be found. There is no explanation what has happened to them. These lists, according to Mr. Armstrong, gave details of purchases made by Mr. Waite of materials for stock as also of materials against indents from various firms having dealings with the Munitions Board after his power of purchase was withdrawn: 'that there were very material adjuncts to his application for the issue of search warrants as furnishing materials showing the necessity of inspection of the books of the firms mentioned in his petition.' In neither of these two lists the name of the present firm occurs. Mr. Armstrong has filed an affidavit before us, in which he says that when he began inspection of the record of the Munitions Board, he came accross several transactions which he had every reason to suspect were fraudulent and dishonest in their character and which clearly pointed to the commission of criminal offenses by several persons independently and acting in concert: that as a preliminary to sending up a case for enquiry before the Magistrate he found it very necessary to examine and inspect the books of the various firms and persons which had dealings with the Munitions Board and which were suspected of being concerned in the fraudulent transactions: that accordingly on the 21st December 1919 he applied for search warrants to search and inspect the books of the several firms including the firm of Jagannath Agarwalla. He also says 'that when he handed his petition for search warrants, he also handed over the two lists above mentioned and that at the time he handed them over, the Chief Presidency Magistrate questioned and examined him about the contents of his petition and inter Alia specifically asked him if the various firms and persons set out at the end of his petition were firms and persons who had dealings with the Munitions Board, which from his investigation he had reason to suspect were dishonest and fraudulent, and he answered the same in the affirmative.' It is very unfortunate that no record of his examination has been kept. No doubt there is no express provision requiring the Magistrate to make a record or keep notes of such examination, but it has been repeatedly pointed out by this Court that some record ought to be kept to enable us to form an opinion as regards the materials upon which the Magistrate acted. Mr. Armstrong says nothing more in his affidavit than that he told the Magistrate that be suspected that the dealings of the firms and persons named in his petition were dishonest and fraudulent. It is not the Investigating Officer's suspicion we are concerned with. The Magistrate has to form his own opinion upon the materials placed before him. He is not relieved from his duty by stating that he believed that the officer had formed a correct opinion. We have nothing more than a vague statement from Mr. Armstrong, which seems to me to be quite inadequate for an order under Section 96.
3. The learned Advocate General was not able to make up his mind whether an enquiry was being made or not when the warrant was issued, but we understood him finally to say that we might take it that no enquiry was being made but he submitted that Section 96 was applicable, whether an enquiry was about to be made or not. The Magistrate, however, says that an order 'was necessary for purposes of the enquiry which Mr. Armstrong's investigation was likely to lead up to,' but that is not what in my opinion the section contemplates. I do not think that an order under Section 93 can be made to further a Police investigation, which may or may not result in an enquiry. The form of the search warrant in the Code refers 'to an enquiry now being made or about to be made.' There are separate provisions in the Code for investigation and large powers are given to the Police in cognizable cases for seizure of documents. The word 'investigation' is defined in the Code and is differentiated from an enquiry. Chapter XIV, Criminal Procedure Code, has nothing to do with the proceedings we are now dealing with.
4. I think the order for the search warrant in this case was made without sufficient consideration of the requirements of the section and upon inadequate materials and ought to be set aside, I hold that the materials upon which such an order is made ought to be placed on the record. While setting aside the Order I need hardly add that it will not preclude a further application for production of the books on proper materials. My learned brother has not agreed with my views, but agrees with me in ordering that the Rule be made absolute and that the books be returned. Ordered accordingly.
5. From the explanation submitted by the Chief Presidency Magistrate and the affidavit of Mr. Armstrong, it appears that the Chief Presidency Magistrate satisfied himself by enquiries from Mr. Armstrong that the issue of the search warrant was necessary. He did not issue it on the bare statement in Mr. Armstrong's petition that the issue of search warrants against the persons named was necessary. He had material before him on whish he considered the purpose of an enquiry would be served by a general search or inspection. I am unable to hold that in coming to this conclusion he did not properly exercise his judicial discretion.
6. Section 96 of the Criminal Procedure Code, as explained by the Judicial Committee of the Privy Council in Clarke v. Brojendra Kishore Roy Chowdhury : (1912)14BOMLR717 , empowers a Magistrate to issue a search warrant before any proceedings of any kind are initiated and in view of an enquiry about to be made. The learned Counsel for the petitioner contends that no enquiry was about to be made when this search warrant was issued and draws our attention to a remark in Mr. Armstrong's petition that 'an enquiry is now being made.' Having regard to the interpretation given to the words 'enquiry' and 'investigation' in clauses (R) and (l) of Section 4, Criminal Procedure Code, this appears to have been incorrect and Mr. Armstrong should have called it an investigation and not an enquiry. I think a distinction must be drawn between 'an enquiry about to be made' and an 'investigation that is being made,' and that the former expression does not include every investigation. But in the present case the allegations in Mr. Armstrong's petition were so serious that the Magistrate could have no doubt that he would have to hold a judicial enquiry. Further it has been brought to our notice that a regular judicial proceeding has since been instituted. I, therefore, hold that the contention fails that there was an absence of jurisdiction to issue the search warrant because no enquiry was about to be held. The Chief Presidency Magistrate had power to issue the search warrant and it has not been shown that his judicial discretion was improperly exercised.
7. Though with regret I differ from the view taken by my learned brother, I do not refuse to sign the order which he proposes to make. The subsequent proceedings in the similar case of Mr. Pratt show that it will still be open to the authorities to obtain these documents, if necessary, by an. application under Section 94, Criminal Procedure Code and the balance of convenience will be served by finally disposing of this; case now. A difference as to the order to be passed would require are hearing of the case before a third Judge.
8. I agree in the order of my learned brother but not in the reasons given bye him for that order.
9. The Rule is made absolute and the order of the lower Court is set aside.