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TMI Blog1979 (9) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... ing committed offences under sections 403, 409, 420 and 477A read with s. 34, Indian Penal Code. Original accused 1, and accused 2 the present petitioner, were respectively President and Secretary of the Sabha and original accused 3 to 6 were described as Managers of the Institution. The complainant made an application on 4th January 1977 requesting the learned Magistrate to issue a search warrant to search the office premises of the Sabha and seize the books, documents, etc. described in the application, if found therein. On the very day the Magistrate issued a search warrant and in fact it was executed and certain books, vouchers and papers were produced before the Court. The present petitioner (original accused 2) requested the learned Magistrate to recall the warrant and to return the books and documents seized under the authority of the search warrant. The learned Magistrate was of the opinion that in view of the decision of this Court in Shyamlal Mohanlal v. State of Gujarat, and an earlier decision of V. Khalid, J. Of Kerala High Court, no search warrant could be issued under s. 91 of the Code of Criminal Procedure, 1973 ('new Code' for short), and accordingly direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, or (b) where such document or thing is not known to the Court to be in the possession of any person, or (c) 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, it may issue a search-warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions hereinafter contained . In exercise of the power conferred by s. 91 a summons can be issued by the Court to a person in whose possession or power any document or other thing considered necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Code calling upon him to produce the document or thing at the time and place to be mentioned in the summons. On the advent of the Constitution, and especially in view of the provision contained in Art. 20(3), Courts were faced with a problem whether the person referred to in s. 91(1) of the Code (s 94 of old Code) would include an accused. In other words, the question was whether a summons can be addressed to the accused calling upon him to produce any document which may be in his poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, the question whether the expression 'person' in s. 94 (old) s. 91 (new) would comprehend a person accused of an offence was left open. Following the decision in M. P. Sharma's case, a Division Bench of the Madras High Court in Swarnalingam Chettiar v. Assistant Labour Inspector, Karaikudi held that a summons could not be issued under s. 94 of the old Code to the accused for production of certain documents in his possession irrespective of the fact whether those documents contained some statement of the accused made of his personal knowledge and accordingly the summons issued to the accused to produce certain documents was quashed. After the matter went back to the trial court, on an application of the Sub-Inspector investigating the case, for a search warrant to be issued to obtain documents mentioned in the list attached to the petition and likely to be found upon a search of the premises of Karaikudi Railway out Agency, the Magistrate issued a notice to the accused to show cause E, why a general search warrant as asked for should not be issued. Again the accused moved the High Court in revision and in Swarnalingam Chettiar v. Assistant Inspector of Labour Karai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al v. State of Gujarat. In that case appellant Shyamlal Mohanlal was a licensed money-lender and according to the provisions of the relevant Money Lending Act and Rules he was under an obligation to maintain books. He was prosecuted for failing to maintain books in accordance with the provisions of the Act and the Rules. The police prosecutor incharge of the case on behalf of the prosecution presented an application requesting the Court to order the appellant Shyamlal Mohanlal to produce daily book and ledger for a certain year. Presumably it was a request to issue summons as contemplated by s. 94 of the old Code. The Learned Magistrate rejected the request on the ground that in so doing the guarantee of immunity from self- incrimination would be violated. The matter ultimately came to this Court and the question that was put in forefront before the Court was whether the expression 'person' in s. 94(1) which is the sale as s. 91(1) of the new Code, comprehends within its sweep a person accused of an offence and if it does, whether an issue of summons to produce a document in his possession or power would violate the immunity against self-incrimination guaranteed by Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could have issued a summons but would not issue the same under the apprehension that the person to whom such summons is issued will not or would not produce the thing as required by such summons or requisition. A search warrant under s. 93(1)(a) could only be issued where a summons could have been issued under s. 91(1) but the same would not be issued on an apprehension that the person, to whom the summons is directed would not comply with the same and, there- A fore, in order to obtain the document or thing to produce which the summons was to be. issued, a search warrant may be issued under s. 93 (1) (a) . Section 93, however, also envisages situations other than one contemplated by s. 93(1)(a) for issuance of a search warrant. It must be made distinctly clear that the present search warrant is not issued under s. 93 ( 1 ) (a) . Section 93(1) (b) comprehends a situation where a search warrant may be issued to procure a document or thing not known to the Court to be in the possession of any person. In other words, a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cover such situation as where evidence which may have tendency to incriminate the accused is being collected without in any manner compelling him or asking him to be a party to the collection of the evidence. Search of the premises occupied by the accused without the accused being compelled to be a party to such search would not be violative of the constitutional guarantee enshrined in Article 20(3). . It was, however, urged that s. 93(1) (c) must be read in the context of s. 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 s. 93(1) (c) will have to be ruled out because in such a situation s. 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 or 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be said to be in possession of any individual accused but stricto sensu it would be in possession of the institution. Books of accounts and other documents of the institution could not be said to be in personal custody or possession of the office bearers of the institution but they are in possession of the institution and are lying in the office of the institution. A search of such a public place under the authority of a general search warrant can easily be sustained under s. 93(1)(c). If the order of the learned Magistrate is construed to mean this, there is no, illegality committed in issuing a search warrant. Of course, 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 laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant. Having said this, we see no justification for interfering with the order of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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