1970 Supreme(P&H) 9

PUNJAB & HARYANA HIGH COURT
Man Mohan Singh Gujral, J.
Shiv Dayal
Versus
Sohan Lal Bassar
Criminal Revision No. 157-R of 1968,
Decided On : JANUARY 8, 1970

A search warrant can only be issued under Section 96(1) of the Criminal Procedure Code if the Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under S.95, Sub-Section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the Court to be in the possession of any person. or where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 96(1) - SEARCH WARRANT - ISSUANCE - CONDITIONS - INTERPRETATION - SCOPE - REQUIREMENTS - JUDICIAL DISCRETION - REASONS FOR ISSUANCE - NECESSITY - SPECIFIC DOCUMENTS OR ARTICLES - GENERAL SEARCH OR INSPECTION - APPLICABILITY - TRADE MARKS ACT, 1958 - SECTIONS 78 AND 79 - INFRINGEMENT - OFFENCES - INVESTIGATION - SEARCH WARRANT - ISSUANCE - JUSTIFICATION - JUDICIAL DISCRETION - EXERCISE - PROPRIETY - FACTORS TO BE CONSIDERED.

Fact of the Case:

Bakshi Ram, the father of Sohan Lal respondent, suspecting that his partners had become dishonest and had started misappropriating the assets of the firms served a notice on his partners dissolving the firms. The notice was received by the other partners in February, 1967, and in reply it was requested by the other two partners that the dissolution be postponed till 31st March, 1968, being the end of the financial year. Bakshi Ram, however, did not agree to this and only allowed the firms to continue running for the purpose of winding up till 31st March, 1967. In spite of the dissolution of the firms the partners other than Bakshi Ram continued to run the business of manufacture and sale of agricultural implements under the trade marks which had been got registered by the firms for their own exclusive use and benefit. Being of the view that the acts of Shiv Dayal and Kishan Chand offended Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, and Sections 416, 420, 478, 482, 483, 485 and 486 of the Indian Penal Code, Bakshi Ram got a complaint filed through his son Sohan Lal against his two partners Shiv Dayal and Kishan Chand in the Court of the Judicial Magistrate First Class at Jullundur. In that complaint he also made an application for the issuance of warrants under Section 96 of the Criminal Procedure Code and on that application search warrants for the recovery of the goods bearing the infringed trade marks and other materials such as seals, stamps, patterns, etc., were issued.

Finding of the Court:

The court held that the search warrants issued by the Judicial Magistrate were not justified and set them aside. The court found that the Magistrate had not given any reasons for issuing the search warrants and that the application for the warrants did not clearly specify whether the warrant was being issued under the first, second, or third part of Section 96(1) of the Criminal Procedure Code. The court also found that the Magistrate had not considered the fact that the accused had admitted in their affidavit that they were using the infringed trade marks and that the goods bearing the infringed trade marks could be easily proved by the complainant by the production of witnesses to whom these goods were being sold.

Issues: 1. Whether the search warrants issued by the Judicial Magistrate were justified? 2. Whether the Magistrate had given any reasons for issuing the search warrants? 3. Whether the application for the warrants clearly specified whether the warrant was being issued under the first, second, or third part of Section 96(1) of the Criminal Procedure Code? 4. Whether the Magistrate had considered the fact that the accused had admitted in their affidavit that they were using the infringed trade marks? 5. Whether the goods bearing the infringed trade marks could be easily proved by the complainant by the production of witnesses to whom these goods were being sold?

Ratio Decidendi: 1. A search warrant can only be issued under Section 96(1) of the Criminal Procedure Code if the Court has reason to believe that a person to whom a summons or order under Section 94 or a requisition under S.95, Sub-Section (1), has been or might be addressed, will not or would not produce the document or thing as required by such summons or requisition, or where such document or thing is not known to the Court to be in the possession of any person. or where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection. 2. Where the documents and things are known to be in the possession of the accused and their location and place of storage are also known the warrant would not be a general warrant for search and inspection and would be covered by the first part of Section 96(1) of the Criminal P.C. 3. The words "the document or thing" occurring in the first part of Section 96(1) envisages that specific documents and articles which could be required by a person could be obtained by the issue of a warrant under Section 96(1) of the Criminal P.C. 4. Where, therefore, what is required is specific documents or articles including books of accounts, etc., alleged to be in the custody of the accused the warrant would be one under the first part of Section 96(1) and not the third part.

Final Decision: The court set aside the orders passed by the learned Magistrates dated 22nd May, 1968 and 5th August, 1968, issuing the search warrants.