Law Web: Precaution to be taken by magistrate prior to issuance of search warrant

8. A brief reference to Section 93 (1) would be profitable to

appreciate the contentions:

“Section 93 - When search-warrant may be issued

(1) (a) Where any Court has reason to believe that a

person to whom a summons or order under section 91

or a requisition under sub-section (1) of section 92 has

been, or might be, addressed, will not or would not

produce the document or thing as required by such

summons or requisition, or

(b) where such document or thing is not known to the

Court to be in the possession of any person, or

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.

(2) xxxx xxxx

(3) xxxx xxxx”

9. As is evident from the wording of the section, it arms the

jurisdictional Magistrate with very wide powers. Issuance of a search

warrant is a very drastic step with serious consequences and it cannot

be gainsaid that such drastic powers should not be exercised without

fully appreciating the gravity of the step. It is for that reason, the

words "reason to believe" is incorporated in the said section. This

function being judicial, it necessarily follows that the Magistrate has

to apply his mind judicially.

10. It is evident from the provision that clause (a) of sub-

Section (1) requires, as a condition precedent, to the issue of a search

warrant, that the court must have reason to believe that the person,

against whom the search warrant is issued, is likely not to produce

the document or thing in his possession as required by a summons or

order under Section 91 or a requisition under Section 92(1) of the

Code, served on him, or that he is not likely to produce it, should such

summons or order or requisition be served. No such situation had

arisen in the instant case. It does not appear from the order that the

petitioners were called upon to produce the document and they had

refused. 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 if it was not known to the court that the

person from whose possession it was found, was in possession of it.

The said provision has no application as it is evident from the

application itself that the document was in the possession of the

relevant office bearer of the Tennis Club. Under clause (c), a search

warrant can be issued where the court considers that the purposes of

any enquiry, trial or other proceeding under this Code will be served

by a general search or inspection. A Magistrate must, under this

provision, apply her mind to the question whether the purposes of any

enquiry, trial or other proceeding under the Code will be served by a

general search, and, unless there are materials before her, connecting

the person against whom the warrant is applied for with the offences

alleged, upon which it can come to an independent decision on the

point, it has no power to issue a search warrant. I have no doubt in my

mind that none of the situations contemplated in clauses (a) to (c) of

Section 93(1) had arisen in the instant case.

11. There is yet another aspect of the matter. When the

law requires the sanction of Magistrate before the issue of a search

warrant, it means that the Magistrate should apply its mind to the

facts. This fact should be discernible from the order passed. It can be

argued that the provision does not contemplate recording of detailed

reasons prior to the issuance of an order in view of the urgency of the

situation. However, in a case of instant nature, wherein allegations

are levelled against the officer bearers of a club for wrongly

inducting a member against the provisions of the bye-laws, the

learned Magistrate ought to have applied her mind and should have

formed an opinion upon the materials placed before her. The

“reasons to believe” which weighed in the mind of the Court to take

such a drastic step should have been reflected in the order.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE RAJA VIJAYARAGHAVAN V

Crl.MC.No. 8672 of 2018

K.P VIJAYA MOHAN, Vs N. JAYA KUMAR,

Dated: 15TH DAY OF MARCH 2019

ORDER

The petitioners herein are the principal officer bearers of the

Trivandrum Tennis Club, a society registered under the Travancore

Cochin Literary Scientific and Charitable Societies Registration Act,

1955. They have invoked the inherent jurisdiction of this Court to

quash order dated 6.12.2018 passed by the learned Chief Judicial

Magistrate, Trivandrum in C.M.P. No.3740 of 2018 in CM.P. No.3647

of 2018.

2. It appears that a complaint was lodged by the 1st

respondent under Section 190 of the Cr.P.C. before the learned

Magistrate with a prayer to take cognizance of the offence under

Sections 406, 420 and 120B of the IPC. Along with the complaint, an

application under Section 93 of the Cr.P.C. was filed for issuance of a

search warrant.

3. The complaint as well as the petition are seen filed on

1.12.2018.

4. The allegation in the complaint is that the petitioners,

being the President and other office bearers of the Trivandrum

Tennis Club, in violation to the mandate and direction of law, and

against the provisions of the bye-laws, admitted a certain S.Mahesh

Kumar as a member of the Tennis Club and committed the offence.

5. It does not appear from the impugned order that

cognizance of the offence was taken by the learned Magistrate. By a

laconic order dated 6.12.2018, the application was allowed. The

order is extracted below for easy reference.

“(1) Petition praying to issue search warrant.

(2) Heard. Petition allowed.

Permission granted to conduct search in

the office of Trivandrum Tennis Club, Kowdiar

for seizing the items mentioned in the petition in

accordance with law. ………………...”

6. The learned counsel appearing for the petitioners

submitted that the issuance of a search warrant is a judicial function

and the learned Magistrate was expected to give reasons which

persuaded him to exercise his discretion to allow the application and

order the search and seizure of records such as Minutes Book,

Membership lists, ledger accounts, inward registers etc. pertaining

to several years. According to the learned counsel, the words

“reason to believe” coupled with other words in the section

contemplate an objective determination based on application of mind

and deliberation as opposed to a purely subjective consideration. He

would urge that the learned Magistrate without even taking

cognizance of the offence and without ascertaining whether such a

drastic action was contemplated in the facts of the instant case, has

casually allowed the application. He would contend that none of the

conditions under which a search warrant could be issued as laid

down in Section 93 of the Cr.P.C. was made out in the instant case.

7. The learned counsel appearing for the 2nd respondent, on

the other hand, submitted that the learned Magistrate has exercised

her discretion in a proper manner and no interference is warranted.

According to the learned counsel, it is perfectly lawful for a

Magistrate to issue a search warrant when it considers the

production of anything necessary for the purposes of any enquiry

under the Code. He would contend that it is not incumbent for the

learned Magistrate to wait until the evidence of prosecution has been

recorded.