1. In this case Bilas Roy Choudhuri and Biseswar Lal Lohia were accused before the Presidency Magistrate of criminal trespass and theft, the complainant being Ram Gopal Khemkar. On applying; for processes on 6th November last, the complainant also applied for a search warrant to search the house of the accused No. 1, alleging that there would be found the property belonging to him which had been removed from his place of business at 203/1, Harrison Road. The matter was then before Mr. Keays, the Second Presidency Magistrate. No order was passed on the 6th and that application was renewed or fresh applications were presented on 9th, 13th, 22nd, 26th, 28th and 29th. Eventually on 29th November, Mr. Swinhoe, the Chief Presidency Magistrate, who bad taken the case on to his own file during the absence of Mr. Keays, passed an order for the issue of a search warrant returnable on 1st December 1917. That day the accused No. 1 applied to this Court and on 30th November obtained a Rule, apparently in the presence of the opposite party, calling upon the Chief Presidency Magistrate and the opposite party to show cause why the order directing the issue of the search warrant should not be set aside or suspended. At the same time the execution of the search warrant was stayed. That was a week ago. The matter came before us on Tuesday last. It was adjourned till yesterday for the filing of affidavits in reply by the complainant and was then fully argued. The only question before us on the Rule is whether the search warrant issued should be set aside or suspended.
2. Now, the order for the search warrant made by the Magistrate was for return on the 1st. That day has passed by effluxion of time and I presume that if the matter now goes back to the Magistrate, it will be necessary for him, if he does issue a search warrant, to make it returnable on some future date. The order, therefore, of the Magistrate of 29th November cannot be carried out as it at present stands. We wish to say that, in our opinion, though the procedure adopted in the Magistrate's Court was not contrary to the actual letter of Sections 96 and 98, Criminal Procedure Code, it was so dilatory that it could only tend to defeat the object which the complainant had in view (and presumably the Chief Presidency Magistrate by his order of 22nd November had in view) of finding out by a surprise visit whether the property which the complainant said was in the possession of the accused No. 1 was actually in his possession at the place named. The whole object of issuing a search warrant, under the circumstances like this, is to secure for the purposes of the trial identification of the property and to ascertain whether it is really in the possession of the accused or not. Delay, as in this case, of more than three weeks could not but operate to defeat that purpose. There was, however, as we said before, nothing actually irregular or contrary to the sections of the Code in the Magistrate's proceedings.
3. The matter has been argued at great length before us and during the week which has elapsed since the Rule was issued a number of facts have been alleged, some of which certainly were not before the Magistrates when the applications were made to them. The complainant states that the breaking upon of his place of business and the removal of the property therefrom was a design by the accused No. 1 to hamper him in his business and possibly also to make things more difficult for him in the insolvency proceedings which were then pending against him. On the other hand, the accused No. 1 alleges that he broke open the door of this guddi or room in order to resume possession of it as the landlord of the complainant, which admittedly he was. He says, that the Official Assignee had on 24th August removed all the properties of the complainant from that room and that it was empty except for a chisel, a hammer, a few gunnies and some waste paper. It is quite unnecessary for us, and it would be improper, I think, for us, to decide on these questions of fact.
4. The Rule must, I think, be discharged on the ground that the Magistrate has not committed any error of law or procedure in issuing a search warrant. It is a matter in the discretion of the Magistrate, and it cannot be said in this case that he exercised that discretion in such a way as to render his act illegal. Moreover, the order for the warrant having expired a fresh warrant will in any case be necessary. The case will be sent back to the Chief Presidency Magistrate to be dealt with by him or such Magistrate as he may select. As to whether the Magistrate who has charge of the case will think it necessary or advisable at the present stage to issue a fresh search warrant must be left to that Magistrate to consider. It may be that having regard to the facts which have been alleged here the Magistrate may think it better to hold an enquiry before issuing a warrant. He may also, if he thinks right, hear what the accused has to say. In that we do not wish to fetter the decision of the Magistrate and we leave it to him to determine. The only order of the Court now is that the Rule is discharged.