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PUNJAB & HARYANA HIGH COURT
Gurnam Singh, J.
Harbans Singh
Versus
State Of Punjab
Criminal Miscellaneous No. 3692-M of 1974,
Decided On : OCTOBER 4, 1977
CRIMINAL PROCEDURE CODE, 1898 - Ss. 94, 95(1), 96 - SEARCH WARRANT - ISSUANCE - CONDITIONS PRECEDENT - REASONS TO BE RECORDED - FAILURE TO RECORD REASONS - ORDER QUASHED.
Fact of the Case:
A petition was filed to quash an order issued by the Chief Judicial Magistrate under S.96 of the old Code (CrPC, 1898) for the issuance of search warrants. The petitioner argued that the order was illegal and void as the Magistrate had not applied his judicial mind to the facts of the case and had not recorded any reasons for issuing the search warrants.
Finding of the Court:
The High Court held that the Chief Judicial Magistrate had acted illegally in issuing the search warrants without recording any reasons. The Court observed that the Magistrate was required to give justiciable reasons for his conclusion, to enable the Appellate or Revisional Court to know whether the Court had applied its mind to the point in issue and decided the same in accordance with law or not.
Issues: Whether the Chief Judicial Magistrate had acted illegally in issuing the search warrants without recording any reasons.
Ratio Decidendi: The Court held that the Magistrate was required to record reasons for issuing the search warrants, as the issuance of a search warrant is a judicial function. The Court further held that the Magistrate had not applied his mind to the facts of the case and had not given any reasons as to why he believed that the accused would not produce the documents and things required. The Court also held that the Magistrate had not given reasons as to what purpose would be served by the general search.
Final Decision: The petition was accepted, and the impugned order for the issue of search warrants was quashed.
1. A case under Ss. 5 (1) (d) and 5 (2) of the Prevention of Corruption Act, 1947, was registered at Patiala, against Shri Harbans Singh, Chairman, Punjab State Electricity Board, Patiala, by Shri Gurdial Singh, Deputy Superintendent of Police, Vigilance Bureau, District Patiala on 10-8-1973 at 8 Oclock. On the same day Sh. Gurdial Singh, Deputy Supdt. of Police, made an application in the Court of Chief Judicial Magistrate, Patiala, requesting for the issuance of a search warrant under S.96, Cr. P. C. 1898 (hereinafter referred to as old Code) for the search of the places mentioned in the petition. The learned Chief Judicial Magistrate, Patiala, passed the following order on the same day: "I have gone through the above report and I have heard the investigating officer and have perused the police file. I have reason to believe that Shri Harbans Singh accused will not produce the things and documents on a requisition under Section 94, Cr, P. C., so, search warrants as requested be issued."
2. Search warrants authorising Sh, Gurdial Singh, Deputy Supdt. of Police, Vigilance Bureau for the search of the places specified in the application and for the recovery of things and documents, were issued on the basis of which the search of the office and house of Sh. Harbans Singh, Chairman, Punjab State Electricity Board, was conducted on the same day and the articles mentioned in annexures P. 3/1, P. 3/2, P. 3/3 and P. 3/4 were recovered.
3. Sh. Harbans Singh has filed this petition for quashing the order of the Chief Judicial Magistrate dated 10-8-1973 passed for the issue of search warrants under S.96 of the "old Code" and all other subsequent proceedings taken in pursuance of those search warrants on the grounds that the same were illegal and void.
4. Shri B. R. Kakkar, Under Secretary, Vigilance Department, Punjab State, filed his affidavit on behalf of respondent No. 1. Respondent No, 2 also filed his own affidavit denying the allegations made against him. Sh. B. R. Kakkar in his affidavit stated that the Chief Judicial Magistrate, after having satisfied himself, had issued the search warrants which have duly been executed. It Is further stated by him that a charge-sheet has been filed against the petitioner in the Court of Special Judge, Patiala, and he has been charge-sheeted under S.5 (1) (a) (b) and (d) punishable under S.5 (2) of the Prevention of Corruption Act, 1947 read with S.161, Indian Penal Code, He further stated that a case under the Punjab Excise Act for the recovery of liquor/ whisky and a case under the Arms Act for the recovery of a pistol, the licence of which had expired on 4-7-1973, were, registered against the petitioner.
5. The learned counsel for the petitioner vehemently urged that the first information report was registered at 8 A. M., that the application for search warrants was put up before the Chief Judicial Magistrate at 10 A. M., that there was no material before the Chief Judicial Magistrate to satisfy himself that any purpose will be served by the search warrants and that he issued the search warrants without applying his judicial mind to the facts of the case. He further pointed out that the Chief Judicial Magistrate had no power to issue the search warrants as the offence alleged in the first information report was not triable by him.
6. In this case, the Chief Judicial Magistrate, Patiala, issued the search warrants under S.96 of the old Code, having reason to believe that Shri Harbans Singh will not produce the things and documents on a requisition under S.94 of the old Code. It is not disputed that no process under S.94 of the old Code had earlier been issued by any Court. It is not a case, where the documents or the things alleged to be in the possession of the accused, were not known.
7. Under S.94 of the old Code, summons or a written order, can be issued to a person in possession or power of such document or thing required to be produced for the purpose of any investigation, inquir
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