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1981 Supreme(All) 601
IN THE HIGH COURT OF ALLAHABAD
M. WAHAJUDDIN, J
Brijendra Nath Agarwal - Appellant
Versus
Pharmed Private Limited - Respondent
Criminal Miscellaneous Application No. 5743 of 1981
Decided on : 30-11-1981
Advocate Appeared:
For the Appellant : Sushil Harkauli, adv
For the Respondent: S.S. Bhatnagar and K. Capoor, adv
A general search warrant cannot be issued under Section 93(1)(c) of the Code of Criminal Procedure when the case is covered under Section 93(1)(a).
Headnote:
SEARCH AND SEIZURE - SECTION 93(1)(A), (B), (C) CODE OF CRIMINAL PROCEDURE - GENERAL SEARCH WARRANT - VALIDITY - CONDITIONS - INTERPRETATION - APPLICABILITY - SCOPE - DISTINCTION BETWEEN SECTION 93(1)(A) AND (C) - POWER OF COURT TO ISSUE GENERAL SEARCH WARRANT - LIMITS - PROTECTION AGAINST SELF-INCRIMINATION - ARTICLE 20 OF THE CONSTITUTION.
Fact of the Case:
The applicant was being prosecuted on a private complaint under Section 409 of the Code of Criminal Procedure. A search and seizure warrant was issued by the Magistrate, pursuant to an application filed by the opposite party, for the seizure of medicines, account books, and vouchers from the premises of the applicant. The applicant challenged the validity of the search and seizure warrant, arguing that it violated Article 20 of the Constitution and that the Magistrate did not have the authority to issue a general search warrant.
Finding of the Court:
The court held that the search and seizure warrant was not in accordance with law because the case was covered under Section 93(1)(a) of the Code of Criminal Procedure, which requires a specific allegation to recover certain documents or things from a certain specific place, but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person. The court further held that the subsequent steps in the investigation or proceedings would not be vitiated or affected in any manner, even if the search and seizure was in contravention of any provisions of the Code of Criminal Procedure.
Issues: 1. Whether the search and seizure warrant issued by the Magistrate was valid? 2. Whether the seizure of the medicines, account books, and vouchers from the premises of the applicant was lawful? 3. Whether the subsequent steps in the investigation or proceedings would be vitiated or affected due to the illegal search and seizure?
Ratio Decidendi: 1. The court interpreted Section 93(1)(a), (b), and (c) of the Code of Criminal Procedure and held that a general search warrant cannot be issued under Section 93(1)(c) when the case is covered under Section 93(1)(a). 2. The court held that the seizure of the medicines, account books, and vouchers from the premises of the applicant was lawful, even though the search and seizure warrant was not valid, as the subsequent steps in the investigation or proceedings would not be vitiated or affected due to the illegal search and seizure.
Final Decision: The court dismissed the application filed by the applicant and vacated the stay order. The Magistrate was directed to expedite the disposal of the case.
M. Wahajuddin, J.
The applicant is being prosecuted on a private complaint of the opposite party u/s 409 Code of Criminal Procedure filed on 25-6-1979. It would appear that in pursuance of a search and seizure warrant issued by the Magistrate concerned medicines, account books, vouchers etc. have been seized from the premises of Brijendra and Brijendra. The order is Annexure III and the search warrant, also directing seizure is Annexure IV. The order was passed on an application preferred by the opposite party, Annexure I, supported by an affidavit, Annexure II. In the application for search and seizure, it was stated that the belongings are in possession of the accused and prayer for his search and seizure from his place was made. The warrant issued by the Magistrate is, however, not for any personal search or search of the premises of the accused person, but it purports to be a warrant for general search.
2. The first ground urged is that there is a violation of Article 20 of the Constitution as any accused person cannot be called upon to furnish any incriminating evidence against him. Reliance has been placed upon the case of State of Gujarat v. Shyam Lal Mohan Lal Choksi AIR 1965 SC 1251 wherein it was held that no search warrant could be issued to search for documents known to be in possession of the accused, but a general search or inspection can still be ordered. The learned Counsel for the opposite side relied upon the case of V.S. Kuttan Pillai Vs. Ramakrishnan and Another, AIR 1980 SC 185. In that case the following observations have been made:
It was however, urged that Section 93(1)(c) must be read in the context of section 93(1)(b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by Section 93(1)(c) will have to be ruled out because in such a situation section 93(1)(a) alone would be attracted. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document of thing is in possession of any particular person. Under Clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. One cannot, therefore, cut down the power of the Court u/s 93(1)(c) by importing into it some of the requirements of Section 93(1)(b). No canon of construction would permit such an erosion of power of the Court to issue a general search warrant. It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation, inquiry, trial or other proceedings under the Code. The High Court accordingly sustained the general search warrant in this case u/s 93(1)(c).
3. I have considered the implication. It may be observed that in paragraph Nos. 10 and 11, read together, it was observed that the court was proceeding on a certain assumption in view of the decision in Shyamlal Mohanlal's case though there are conflicting observations in different pronouncements and a search u/s 93(1) Code of Criminal Procedure would not be issued where the summons could not be issued to a person accused of an offence, calling upon him to produce documents or things considered necessary. It would thus appear that in no way there has been any dissent from the earlier pronouncements so far as this particular aspect is concerned and the aforesaid pronouncement la
