When we turn back to Section 101, we find that the procedure contained therein must mandatorily be followed while dealing with the seizure of the articles found in execution of the search warrant, when it is under Section 78 or 79. It must also be mandatorily followed, when it is done under Section 105, though in exceptional cases, a departure from Section 101 procedure is permissible.{Para 34}
35. Section 101 is an omnipotent provision, it being the only of it's kind which deals with disposal of things found in the search, whether under Section 78 or Section 79 or Section 105 and so it has universal application to all searches made by resorting to any of the three modes of the execution of warrants, barring the power of the Magistrate to depart from it in a rare case under Section 105. Language of Section 101 has an imperative character. This is evident from the use of an expression indicative of a mandate therein. The mandate is expressed in words “such things, together with the list of same prepared under the provisions hereinafter contained, shall be immediately taken before the Court”. Uses of the modal verb “shall” here signifies nothing but command of the legislature which must be followed. The command is that the things found in the search must be taken before the Court issuing the warrant but, if such Court is situated farther than the Court within whose local jurisdiction the things are found, the things are required to be taken before such nearer Court. When the things are produced before the nearest Magistrate having jurisdiction over the place searched, along with list of the articles found, such Magistrate is required to make an order authorizing the things to be taken to the Court issuing the warrant, unless he finds a good cause to the contrary.
36. Such procedure prescribed in Section 101 has a purpose behind it. When the Court issuing the warrant is situated at a distant place, considerable time may be required for the officer to produce the things seized before the Court issuing it. Sometimes heavy expenses for transportation of such things may have to be incurred, sometimes seized articles being valuable may be at the risk of being tampered with or forcibly taken away by somebody, sometimes a need may arise for giving back the custody of the seized articles to the person on his executing a bond undertaking to produce the property before the Court as and when required, sometimes there may be also a need for providing for faster transportation of the seized articles to the Court issuing the warrant, sometimes goods being perishable, a command for issuing appropriate directions for their preservation may arise and sometimes seizure of wrong articles, police excesses, and misuse of powers may take place. Such contingencies can only be taken care of adequately by taking the things to the nearest Magistrate and therefore, there is a mandate for taking the things found in the search before the nearest Magistrate. This is the purpose which is sought to be achieved by the prescription contained in Section 101 that whenever it is not possible for an officer to take the things found in the search to the Court issuing the warrant, on account of that Court being situated at a distance farther than the Court within whose jurisdiction the search warrant is executed, the officer must produce the seized articles before such nearest Magistrate. It is also with this object in mind that a discretion has been given to the Magistrate to not authorize taking of the things to the Court issuing the warrant whenever he finds good cause to the contrary. But, we must add here that any refusal to give such authorisation must be by way of an exception, only when there is good cause to do so, and that reasons in writing must be recorded for such refusal. Reason being that when there is a discretion, it always comes with it's own compunction, the compunction of being fair and reasonable. Reasons recorded in writing serve as a barometer to test the parameters of reasonableness, fairness and transparency in exercise of the discretion. of course, in such a case also, disagreeing with the argument of learned counsel for the petitioners, there would be no need for the Magistrate to issue notice to the person from whose custody the articles are seized and give him an opportunity of hearing. There is nothing in Section 101 which indicates giving of such an opportunity of hearing to such person. However, the Magistrate is required to apply his mind to the contents of the search-warrant, list of seized articles and other relevant facts and decide the question of grant of permission or otherwise for the things to be taken before the Magistrate issuing the warrant.
37. In Section 105(2)(d)(ii), it is laid down that where a search warrant has been executed, things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by Section 101. According to the learned counsel for respondent Nos. 1 and 5, the use of the words “so far as possible” clearly indicate that whenever Section 105 mode is adopted for execution of a search warrant, it is not necessary that in every case the procedure prescribed in Section 101 as regards production of seized articles before the nearest Magistrate must be followed and that in fit cases, instead of doing so the things seized could be directly produced before the Court issuing the warrant, no matter at what distance the Court is situated from the place where the search warrant is executed.
38. We are of the view that learned counsel for respondent Nos. 1 and 5 are right in their submission that ordinarily Section 101 procedure should be followed while executing the search warrant in accordance with the procedure prescribed by Section 105, but in exceptional cases, such procedure, in so far as it relates to producing the seized articles before the nearest Magistrate, can be dispensed with by the concerned Court depending on the fact situation of each case. The reason being that Section 105 procedure is a Court monitored mode of execution of the search warrant which is not so in case of the modes referred to any Sections 78 and 79. When the Court having jurisdiction over the place being subjected to search takes upon itself the job of execution of the search warrant, it may, in fit cases, permit the officer executing the search warrant to take the seized articles directly to the Court issuing the warrant instead of the nearest Court by prescribing certain conditions in order to prevent misuse of the power by the executing officer. Such Court is presumed in law to possess the necessary power and means to ensure proper execution of the warrant and prevent abuse of process of law while the officer takes away the things found for their being produced directly before the Court issuing the warrant. Such means not having been possessed by the officer causing the warrant to be executed or executing the warrant under Sections 78 and 79, the officer executing the warrant would have to mandatorily follow the procedure prescribed by Section 101 of Cr.P.C.
39. In view of above, we are of the view that Section 101, procedure governing the disposal of things found in search beyond jurisdiction is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. We further find that when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.
In the High Court of Bombay(Nagpur Bench)
(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)
Angel Click, Vs State of Karnataka,
Criminal Writ Petition No. 39 of 2021
Decided on May 7, 2021,
Citation: 2021 SCC OnLine Bom 682
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