2007 Supreme(Cal) 70

High Court Of Calcutta
Partha Sakha Datta, J.
RANU CHOWDHURY NEE GUHA THAKURTA - Appellant
Versus
SATYAJIT GUHA THAKURTA - Respondent
C. R. R 2857  Of  2005
Decided On : 02/08/2007

A search warrant can be issued under Section 94 of the Cr.P.C. if there is reason to believe that stolen property is deposited at any place.

Headnote:

CRIMINAL PROCEDURE CODE, 1973 - SECTION 94 - SEARCH WARRANT - ISSUANCE - REASON TO BELIEVE - STOLEN PROPERTY - RECOVERY - PERSONAL LOCKER - WIFE NOT JOINED AS PARTY - NO PREJUDICE - SECTION 403/406 OF THE INDIAN PENAL CODE, 1860 - OFFENCES UNDER - COMPLAINT - PROCESSES ISSUED - SEARCH WARRANT FOR RECOVERY OF ORNAMENTS - PERSONAL LOCKER OF ACCUSED - BED ROOM OF ACCUSED - ISSUANCE OF - VALIDITY.

Fact of the Case:

Petitioner's father passed away and ornaments belonging to her parents were kept in a locker at Allahabad Bank, Harish Mukherjee road, Kolkata. Another locker, being No. 156 was hired by the petitioner and the opposite party No. 1 jointly at Punjab National Bank, Lake Area branch wherein all ornaments left by her parents were kept and the key of the locker was in the custody of the opposite party No. 1 who is fact had operated the locker alone to the exclusion of the petitioner during the period from 16.12.1986 to 13.06.1988. On 9.8.2004 the locker was opened in presence of the petitioner, her sister Chinu, the authorized representative of the opposite party No. 1 but nothing was found in the locker and on that day the opposite party No. 1 closed the locker and the Savings Bank account. The opposite party No. 1 was requested to return back the ornaments but in vain. The petitioner then filed the complaint before the learned CJM, Alipore alleging offences under Section 403/406 of the I.P.C. and prayed for search warrant for recovery of ornaments by searching the personal locker of the opposite party No. 1 in Punjab National Bank at tollygunge Branch and also by searching the bed room of the opposite party No. 1 wherein valuable articles were kept in steel Almirah at 33 Russa road (South) 3rd Lane, Kolkata - 700 033.

Finding of the Court:

The court held that the order of the learned Additional Sessions Judge is liable to be set aside. The court observed that the learned magistrate failed to consider that issuance of search warrant was absolutely necessary to recover the removed articles since processes had been issued unchallengeably under Section 403/406 of the I.P.C. The court further observed that the observation of the learned Additional Sessions Judge that since the wife of the opposite party No. 1 was not made a party to the proceeding issuance of search warrant only against the opposite party No. 1 is irregular or illegal cannot be sustained.

Issues: 1. Whether the finding of the learned Additional Sessions Judge is erroneous? 2. Whether the learned magistrate failed to consider that issuance of search warrant was absolutely necessary to recover the removed articles? 3. Whether the observation of the learned Additional Sessions Judge that since the wife of the opposite party No. 1 was not made a party to the proceeding issuance of search warrant only against the opposite party No. 1 is irregular or illegal can be sustained?

Ratio Decidendi: 1. The court held that the finding of the learned Additional Sessions Judge suffers from infirmity. The court observed that the learned additional Sessions Jgdge, upon perusal of the judgment, appears to have insisted on a sort of the conclusive evidence in support of the petitioner's allegation that the ornaments had been removed by the opposite party No. 1 to the personal locker of the opposite party No. 1. 2. The court held that in the context of the petitinoer's allegation that her own brother, the opposite party No. 1 removed all ornaments from the locker No. 156 to his personal locker so that a search could be conducted in that locker as also in the residential house of opposite party No. 1 the learned ACJM, Alipore upon consideration of the averment allowed the petition which in absence of evidence to the contrary cannot be rejected. 3. The court held that the observation of the learned additional Sessions Judge is that there was no document lying with the record from which it could be found that the articles given in the list were in the possession of the accused appears to be misnomer because obviously no document was prepared and handed over to the petitioner to show that the opposite party No. 1 admitted removal of the ornaments to his personal locker and to his house.

Final Decision: The revisional application succeeds. The order dated 29.6.2005 passed by the learned Additional Sessions Judge, 7th Fast Track Court, alipore in Criminal Motion No. 23 of 2003 is set aside. The order dated 8.12.2004 passed by the learned Additional Chief Judicial Magistrate, alipore, South 24-Porganas is confirmed.