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High Court Of Delhi
SHYAM M.SACHDEV - Appellant
Versus
STATE - Respondent
CRI.M.(M.) 1495 of 1989
Decided On : 08/22/1990
CRIMINAL PROCEDURE CODE - Section 457 - Order for release of seized property - Necessity of affording opportunity to the person likely to be adversely affected - Principles of natural justice - Search warrant - Requirement of judicial application of mind and reasons for issuance - Illegality of search warrant - Effect on seizure of articles.
Fact of the Case:
The petitioner's wife died of burn injuries. The police registered an FIR against the petitioner under Section 498A/304B, IPC. The petitioner was arrested. The respondent, the father of the deceased, filed a complaint under Section 6 of the Dowry Prohibition Act, 1961, and Section 406 read with Section 34, IPC against the petitioner and his parents. The Magistrate directed the police to submit a report under Section 156(3) of the Code of Criminal Procedure (CrPC). The police submitted a report and the Magistrate issued search warrants for the petitioner's premises. The police seized various articles from the petitioner's premises. The respondent filed an application for release of the seized articles on superdari. The Magistrate, without affording an opportunity to the petitioner, passed an order directing the release of the articles to the respondent. The petitioner challenged the legality of the search warrant and the order of superdari.
Finding of the Court:
1. The order for release of seized property under Section 457 of the CrPC must be made in accordance with the principles of natural justice. The person likely to be adversely affected by the order is entitled to an opportunity to be heard before the order is passed. 2. The issuance of a search warrant is not a mere formality. The Magistrate must apply his/her judicial mind and record reasons for issuing the warrant. 3. The illegality of a search warrant vitiates the seizure of articles made pursuant to the warrant.
Issues: 1. Whether the Magistrate was required to afford an opportunity to the petitioner before passing an order for release of the seized property under Section 457 of the CrPC? 2. Whether the search warrant was issued in accordance with the law? 3. Whether the illegality of the search warrant affected the seizure of articles?
Ratio Decidendi: 1. The principles of natural justice are implicit in Section 457 of the CrPC. Ordinarily, a person likely to be adversely affected by an order is entitled to an opportunity before such an order is made. 2. The issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a lacunic order. The Magistrate must apply his/her judicial mind and record reasons for issuing the warrant. 3. The illegality of a search warrant vitiates the seizure of articles made pursuant to the warrant.
Final Decision: The petition was allowed. The impugned orders dated 4/08/1989 and 24/07/1989 were set aside. The articles seized pursuant to the order dated 24/07/1989 were directed to be returned to the petitioner.
( 1 ) THE wife of the petitioner was daughter of respondent No. 2. She received burn injuries on 21/03/1989 and died on 23/03/1989. On the statement of her father, respondent No. 2, FIR No. 69/89 under S. 498a/304b, IPC was registered on 25/03/1989 against the petitioner. The petitioner was arrested on 10/04/1989. The case has been committed to Sessions.
( 2 ) WHILE the committal proceedings were pending, respondent No. 2 filed a complaint under S. 6 of Dowry Prohibition Act, 1961, and S. 406 read with S. 34, IPC against the petitioner and his parents. The complaint was filed on 7/07/1989, inter alia, pleading that several articles which were given before, at the time of marriage and after the marriage, have been unlawfully and illegally retained by the accused persons who have no right to retain the stridhan of the deceased and it has been prayed that summons be issued to the accused persons for offences under S. 6, Dowry Prohibition Act and S. 406 read with S. 34, IPC. The details of the articles have been given in Annexure a to the complaint. Along with the complaint an application for issue of search warrants and seizure of the property was also filed. On 7/07/1989 the learned Magistrate directed that report be called from SHO under S. 156 (3) of Criminal Procedure Code ( the Code for short) for 31/08/1989. The learned Magistrate also directed that the application for issue of search warrants and seizure of the property be kept pending for further orders as prayed by the counsel for the complainant. Between the date of the order dated 7/07/1989 and submission of the report the only step which appears to have been taken by the police is to record the statements of respondent No. 2 and his brother. These statements were recorded on 14/07/1989 and the report was submitted by SHO to the learned Magistrate on 14/07/1989, inter alia, praying that search warrants in respect of House No. D2/59, East Kidwai Nagar, New Delhi and 139a, New Colony, Gurgaon, Haryana, be issued. It appears that Kidwai Nagar premises were allotted to the petitioner by his employer, namely, Air Force Authorities. On The said report an order was made by the learned Magistrate on 15/07/1989 that "put up with the file on the date fixed. " The date fixed was 31/08/1989. However, on 24/07/1989 search warrants in respect of the aforesaid premises were issued. On 29/07/1989 an application was filed by respondent No. 2 praying that the goods seized by the police on 27/07/1989 may be returned to him on superdari on such terms and conditions as may be just and proper in the facts and circumstances of the case. On the said application an order was made by the learned Magistrate on 29/07/1989 to the following effect : "s. H. O. to report on 1/08/1989. Put up on 2/08/1989 with file. "
( 3 ) THE report was submitted by the SHO according to which the locks of premises No. D-2/59, East Kidwai Nagar, New Delhi, were broken and articles as per list were recovered and seized. The articles were identified by respondent No. 2. In regard to search of Gurgaon property from the report it appears that no article was recovered from the said premises. On 30/07/1989 report was made by the SHO that the articles mentioned in the list have been seized and are lying in the Malkhana. It appears that no proceedings took place on 2/08/1989. The file does not contain any order dated 2/08/1989. On 4th August 1989 the impmpugned order was passed directing the release of articles on Superdari to respondent No. 2 on his furnishing a bond in the sum of Rs. 60,000/ -.
( 4 ) IN this petition filed under S. 482 of the Code the petitioner has challenged the legality of the order dated 4/08/1989 on various grounds. The petitioner has also challenged the legality of all the proceedings starting from the order dated 7/07/1989 including the order directing issue of search warrants. It is urged that the order of search warrant is liable to be quashed. Counsel contended that if order
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