1967 Supreme(Cal) 54

HIGH COURT OF CALCUTTA
T. P. Mukherji
DEBENDRA NATH RAY - Appellant
Versus
STATE - Respondent
Criminal Revn.  186  Of  1967
Decided On : MARCH 20, 1967

The Magistrate receiving the warrant for the purpose of execution is not required to enter into this question of legality of the warrant that is received.

Headnote:

SEARCH WARRANT - EXECUTION - JURISDICTION - MAGISTRATE RECEIVING WARRANT NOT REQUIRED TO ENTER INTO QUESTION OF LEGALITY OF WARRANT - WARRANT FORWARDED TO CHIEF PRESIDENCY MAGISTRATE, CALCUTTA, IN ACCORDANCE WITH REQUIREMENTS OF LAW - DESCRIPTION OF SOME OF ITEMS OF PROPERTIES TO BE SEIZED SUFFICIENT - WARRANT VALID IN PART AND INVALID IN RESPECT OF THE REST - MAGISTRATE RECEIVING WARRANT JUSTIFIED IN EXECUTING THE SAME IN RESPECT OF IDENTIFIABLE PROPERTIES AND REFUSING TO EXECUTE IT IN RESPECT OF PROPERTIES NOT CAPABLE OF IDENTIFICATION - SECTION 99 OF THE CODE OF CRIMINAL PROCEDURE EMPOWERS MAGISTRATE ENDORSING WARRANT FOR EXECUTION, TO EXERCISE HIS DISCRETION IN THE MATTER OF AUTHORISING THE REMOVAL OF THE GOODS CONCERNED TO THE ISSUING COURT.

Fact of the Case:

A search warrant was issued by the Presidency Magistrate of Bombay for recovery of movables from the house of Dr. R. N. Roy's father at Calcutta. The warrant was forwarded to the Chief Presidency Magistrate, Calcutta, for execution. The Chief Presidency Magistrate endorsed the warrant and forwarded it to the police station concerned for execution. The police seized a number of ornaments, utensils and clothes and produced them before the Chief Presidency Magistrate. D. N. Roy, father of Dr. R. N. Roy, filed an application stating that the goods seized belonged to his wife and daughters and as such were not liable to be seized under the search warrant issued by the Bombay Court. The Chief Presidency Magistrate held that he was not competent to decide on the question of identification of the seized articles with reference to the articles mentioned in the search warrant and ordered that the goods seized be sent to the Court issuing the search warrant.

Finding of the Court:

The court held that the Chief Presidency Magistrate was not correct in his view that as the warrant shows that the goods seized are to be forwarded to the issuing Court forthwith he had no discretion in the matter of refusing to forward the goods seized or any of them. The court also held that the Magistrate receiving the warrant would in the circumstances of the case not have been justified in refusing to execute the same. There was ample jurisdiction of his to execute the warrant in respect of the identifiable properties and to refuse to execute it in respect of the properties which were not capable of identification.

Issues: 1. Whether the search warrant was legal and valid? 2. Whether the search warrant was properly forwarded to the Chief Presidency Magistrate, Calcutta? 3. Whether the search warrant that was received by the Chief Presidency Magistrate was a proper one? 4. Whether the Chief Presidency Magistrate fell into an error in coming to his finding that he was not competent to adjudicate on the question of identification of the seized articles with reference to the articles mentioned in the search warrant?

Ratio Decidendi: 1. The court receiving a search warrant in accordance with the provisions of Criminal Procedure Code has no materials before it for the purpose of adjudicating as to whether the warrant is legal or not and it is not required to enter into the question on the responsibility for the warrant is that of the issuing Court. 2. The warrant in this case was forwarded to the Chief Presidency Magistrate, Calcutta, with a forwarding letter but the warrant also was addressed to the Chief Presidency Magistrate. The printed form of the warrant that was used shows that it is a form meant for a direction to "all constables and other His Majesty's officers of the peace for the town of Bombay". This part of the printed form in the circumstances of the case was meant to be penned through but was apparently not penned through by mistake. The warrant was addressed to the Chief Presidency Magistrate as stated above and the Chief Presidency Magistrate endorsed his name thereon and forwarded it to the police station concerned for execution. Strictly under Section 83 of the Code the warrant that was sent should not have been directed to anybody for execution by the issuing Court. The name of the authority for actual execution of the warrant should have been left to the Court to which the warrant was sent for execution. This, however, is a technical matter which, in my view, did not affect the validity of the warrant that was received by the Chief Presidency Magistrate. 3. The list of articles that accompanied the warrant contained description of the things concerned in some cases and no description in others. As a matter of fact, even in respect of some of the items which did contain some description, the description was so vague as to make the same useless. But the description of some of the items was sufficient in the nature of the thing concerned and there need have been no difficulty in identification of those particular items. 4. Section 99 of the Code of Criminal Procedure empowers the Magistrate endorsing the warrant for execution, to exercise his discretion in the matter of authorising the removal of the goods concerned to the issuing Court.

Final Decision: The Rule was made absolute. The order passed by the learned Chief Presidency Magistrate directing that the goods seized in the case be sent to the Court issuing the search warrant was set aside and he was directed to hold an enquiry on the objection filed by the petitioner in this case and come to his finding as to whether first, good cause is shown by the petitioner that the goods or any of them should not be forwarded to the Bombay Court and secondly, whether the goods seized are identifiable with reference to the description thereof in the seizure list itself.