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Ajoy Krishna Sarkar Vs. S.G. Bose - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1929Cal176
AppellantAjoy Krishna Sarkar
RespondentS.G. Bose
Cases ReferredMahomed Jackariah & Co. v. Ahmed Mahomed
Excerpt:
- .....1928 by the chief presidency magistrate should not be set aside. by the former, he ordered a search warrant to issue for certain documents and by the latter he allowed inspection thereof to the complainant, who is the opposite party in this rule.2. the validity of these orders is challenged in this rule mainly upon two grounds, one questioning its legality and the other its propriety.3. the legality of the orders would depend primarily on the question whether section 96, criminal p. c would warrant the issue of the search warrant in this particular case. now the documents in respect of which the search warrant was asked for were ' challans, counterfoil books, bill books and account books for 1927 ' of the from of messrs. sarkar brothers, the petitioners. what was seized in.....
Judgment:

Mukerji, J.

1. This rule has been issued to show cause why two orders passed on 10th September 1928 and the other on 13th September 1928 by the Chief Presidency Magistrate should not be set aside. By the former, he ordered a search warrant to issue for certain documents and by the latter he allowed inspection thereof to the complainant, who is the opposite party in this rule.

2. The validity of these orders is challenged in this rule mainly upon two grounds, one questioning its legality and the other its propriety.

3. The legality of the orders would depend primarily on the question whether Section 96, Criminal P. C would warrant the issue of the search warrant in this particular case. Now the documents in respect of which the search warrant was asked for were ' challans, counterfoil books, bill books and account books for 1927 ' of the from of Messrs. Sarkar Brothers, the petitioners. What was seized in execution of the warrant were

2 Account books. 2 Challan counterfoil books, 1 Second part of Challan. 2 Challans with 2nd and 3rd parts, 1 Bill book and 1 Challan, all of Messrs. Sarkar Bros. : vide petition of motion, para. 10.

4. It is not complained that what was seized was not justified by the warrant, but that the issue of the warrant itself was illegal.

5. It would appear that this search warrant was issued upon an application in which certain offences, to wit forgery and forgery for the purpose of cheating, were disclosed as having been committed by the petitioners, though no very definite particulars of the offences were given and the sections of the Penal Code under which the said offences would come were not mentioned, and the prayer was for the issue of a search warrant and for an order upon the C.I.D. Police to investigate into the matter. The application contained allegations of offences, and asked for an order to be passed without which, by reason of Sub-section (2), Section 155 the police would be incompetent to hold an investigation. Before passing that order the Magistrate necessarily 'would have to take cognizance of the offence, and this he did in the regular way on examining the complainant. Once he took cognizance of the offence, he was quite within his powers in issuing the search warrant under Section 96 of the Code. The articles recovered on the search are evidently necessary for the inquiry or trial that the learned Magistrate is contemplating to hold. It is not material to consider whether he will eventually decide to make an order for investigation by the Police or whether he will call upon the petitioner to stand his trial or whether he will dismiss the complaint. It is clear, however, that once the articles are brought before the Court in execution of the search warrant, inspection thereof may be allowed to the complainant: vide Mahomed Jackariah & Co. v. Ahmed Mahomed [1888] 15 Cal. 109.

6. A further argument has been advanced namely on the question of the propriety of the proceedings in the criminal Court in view of the result of the suit in the Court of Small Causes. I think it is too early now to pronounce any opinion on this matter, seeing that the offences in respect of which the trial may have to take place, have not yet been definitely specified.

Graham, J.

7. I do not think there is any substance whatever in the contention that the order of the learned C.P. is illegal or without jurisdiction.

8. The facts shortly stated are that the opposite party S.G. Bose, a builder and contractor filed a complaint 'making certain allegations amounting to the commission of offences under Section 468 and 477-A, I.P.C., against the petitioner Ajoy Krishna Sarkar. The Magistrate thereupon examined the complainant and issued a search warrant under Section 96, Criminal P.C., for the production of certain books of account. The procedure adopted was according to law and it is difficult to understand how it can be said to be contrary to law or without jurisdiction.

9. The examination of the complainant was obviously made under Section 190(a), Criminal P.C. The Magistrate then having taken cognizance of the complaint, as he was bound to do, issued the search warrant and ordered that the complaint should be put up with the counter-petition. Three courses were open to the Magistrate. He could (1). Issue summons to the accused or (2). Hold an inquiry, or direct inquiry to be made or (3), Dismiss the complaint.

10. It seems to be clear that the Magistrate adopted the second of these alternatives. Section 202, Criminal P.C., requires that reasons should be given when the issue of process is postponed. But the failure to do so would at most bean irregularity and would not justify the setting aside of the order Moreover, the order which was made directing that the case should be put up with the counter-case, is in itself a reason for postponement of process. It seems clear that the learned Magistrate desired to have both versions before him, and also such assistance as he could get from the books of account before taking further action.

11. In my opinion the grounds on which the rule was issued are without any substance and I agree that the rule should be discharged.


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