V.S. JETLEY, J.C. : We are considering the report received from the learned Sessions Judge, Panjim, under Section 438(1) of the Criminal Procedure Code. The report contains a recommendation that the order passed by the learned Julgado Judge-cum-Magistrate, directing the issue of search warrant under Section 96 of the Code be set aside as it cannot be supported in law (hereinafter referred to as "the Code".).

2. The facts, broadly stated, are that on 23rd of March, 1965, Shri Melicio Fernandas, in his capacity as the President of the Goa Dock Labour Union, filed a direct complaint against Shri Mohan Nair and Shri Dattatraya Deshpande under Ss. 323, 403, 406 and 506 read with Section 112 of the Indian Penal Code.

According to that complaint, as Secretaries of the Union, they dishonestly misappropriated funds of the Union and thereby committed breach of trust. They were therefore removed from their posts. The complainant later asked them to render true account of the funds in their custody and also asked for return of the books of account. This made them angry and they threatened and then assaulted the complainant. The learned Magistrate took cognizance of the complaint and examined the complainant under Section 200 of the Code. In his statement on oath the complainant averred that the amount embezzled was about Rs. 30,000/-. An application was also made, on behalf of the complainant, same day, praying for the issue of search warrant under Section 96 of the Criminal Procedure Code. As the decision of this matter will depend on this application it is reproduced in full. It reads as under :

"A complaint has been filed against the accused for criminal breach of trust and criminal misappropriation as also for other offences. The accused have been removed from their office-posts and they are in possession of all the receipt-counterfoils cashbook and other account Books. All these books are essential and their production for the purpose of trial under this Code. A direction will have to be given to both of them to produce account Books under Section 94 of the Criminal Procedure Code. The circumstances of the case are such that they will not produce the said account Books in Court even if required by a summons or requisition. The result then will be the purpose of this prosecution for redressing grievances will be frustrated. It is therefore prayed that a search warrant be issued and directed to the Police Officials of Vasco-da-Gama to seise and produce in this Court all the account Books of Goa Dock Labour Union which are in the possession of either or both the accused. The said record will be either in the houses of the accused or in the premises of the Union Office, the keys of which are still with the accused. Such Search Warrant may kindly be issued under Section 96 of Criminal Procedure Code and the documents be got produced u/s 99 of Cr. P. Code".

The learned Magistrate passed the following order :

"Search warrant with respect to books referred to, in the office; search to be extended to me houses of the accused under Section 96 of the Criminal Procedure Code for there is just apprehension that the accused, if notified, may have the things removed".

The order was passed before the issue of process. As will appear from the case diary the Police Inspector was asked to execute the warrant. On 25th March, 1965, an application was filed on behalf of Nair and Deshpande, praying for vacating the order on the ground that it was illegal. The learned Magistrate directed that the complainant be served with notice of the application and he should be asked to appear on 26th March, 1965. On that day the advocate for Nair and Deshpande filed another application requesting that the order should either be vacated or stayed. This request for stay was not accepted, but the two applications were posted for hearing on 27th March, 1965. On 26th March, 1965, a petition for revision was filed in the Sessions Court, Panjim, on behalf of Nair and Deshp