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1962 DIGILAW 18 (ALL)

Niranjan Prakash v. State

1962-01-24

K.P.MATHUR

body1962
ORDER :- This is a reference by the Additional Sessions Judge of Kanpur, recommending that the order dated 29-10-1960 passed by an honorary Magistrate at Kanpur directing the station officer, Cantonment to search a truck and take it into custody, be quashed and set aside and the truck, if seized, be released. 2. The facts briefly are that on 27-10-1960 Manni Lal filed a complaint under Section 379, I. P. C. in the Court of a Judicial Magistrate at Kanpur against Niranjan Prakash and B. P. Singh, Inspector, and General Manager of Automobiles Financing Corporation and Company on the allegations that the complainant had purchased a truck from Messrs. Automobiles Financing Corporation Company on hire-purchase system and the entire price of the truck was paid off. It was further alleged that on 30-9-1960 the two accused, as representatives of the Automobiles Financing Corporation Company removed the truck without any right and title and in a manner whereby they committed an offence under Section 379, I. P. C. The complaint was transferred by the Judicial Magistrate to a Bench of Magistrates. On 29-10-1960 the complainant made an application for the issue of a search warrant to the police to search and recover the said truck from the premises of Messrs. Automobiles Financing Corporation Company. The application was presented by the Vakil of the Complainant at the residence of one of the Magistrates constituting this Bench. The Magistrate passed an order directing the Station Officer, Cantonment to search the truck, to take it into custody and return the application in original with report and compliance. 3. It is this order which has been referred by the Sessions Judge to this Court with the recommendation that it be set aside and quashed. 4. The view of the Sessions Judge is that the order in question was illegal as one of the Magistrates constituting the Bench could not pass it and that there was no sufficient ground for the Magistrate to make the order. 5. A search-warrant is issued under Section 96 of the Cri. P. C. That section lays down that 'where any Court has reason to believe.... it may issue a search-warrant ......'. The contention of Sri B. C. Saxena, counsel for the accused, is that the complaint was pending before a Bench of Magistrates and that Bench constituted a Court. A Single member of that Bench could not form the Court. P. C. That section lays down that 'where any Court has reason to believe.... it may issue a search-warrant ......'. The contention of Sri B. C. Saxena, counsel for the accused, is that the complaint was pending before a Bench of Magistrates and that Bench constituted a Court. A Single member of that Bench could not form the Court. Under the provisions of Section 96, Cri. P. C. it is only a Court which can issue a search-warrant. The order of search made by a single member of the Bench constituting the Court was, therefore, invalid. 6. The contention of the learned counsel does not appear to be correct. It was held by the Privy Council in Clarke v. Brajendra Kishore Roy, ILR 39 Cal 953 at p. 966 that in the Cri. P. C. the terms 'Court' and 'Magistrate' have been used generally, if not always, as convertible terms. Section 36 taken in conjunction with Sch. III of the Code places the matter beyond all doubt. It is, therefore, perfectly clear that under S. 96, Cri. P. C. a Magistrate, in the exercise of his magisterial powers, as distinct from the powers of a criminal Court, can issue a search-warrant. It is not disputed that the Magistrate who issued directions for the search of the truck is a Magistrate of the 3rd class. He had, therefore, power and jurisdiction to make the order in question. 7. It was further contended by Sri Saxena that the application on which the order of search was made was addressed by the complainant to the Court of Bench Magistrates and so orders thereon could not be passed by a single member of the Bench. I must say that I find myself unable to accept this contention. The competency of the Magistrate to pass the order did not depend on the form of the application. The power to issue an order of search was conferred upon him under the Cri. P. C. He could exercise that power by virtue of his being a Magistrate of the 3rd class. The fact that the application was addressed to the Bench of Magistrates which constituted a Court cannot vitiate or invalidate the order of search, because the Magistrate who passed that order as competent to do so in the exercise of the magisterial powers conferred upon him in his individual capacity. 8. The fact that the application was addressed to the Bench of Magistrates which constituted a Court cannot vitiate or invalidate the order of search, because the Magistrate who passed that order as competent to do so in the exercise of the magisterial powers conferred upon him in his individual capacity. 8. The order in question, however, cannot be sustained for other reasons. A perusal of the file discloses that on 28-10-1960 the complainant had moved an application before the Bench for the issue of bailable warrants against the accused and for the attachment of the truck. On that application orders were made only for the issue of bailable warrants against the accused. This implies that the prayer for the seizure of the truck and taking it into custody of the Court was refused. The order of search in question was passed by one of the Magistrates constituting the Bench at his house. No affidavit was filed in support of the application. The issue of a search-warrant is a grave matter and it is the duty of a Magistrate to satisfy himself as to the existence of circumstances necessitating the taking of that grave step. On 28th October, 1960, the Court did not accept the prayer of the complainant to attach the truck and take it into its custody. The application on which the order for search was made did not disclose any additional facts or circumstances justifying the unusual step of issuing a search-warrant. A search-warrant should not be issued in the first instance unless the Court or the Magistrate is satisfied that there were good reasons for believing that the issue of summons or orders under Section 94, Cri. P. C. was not to bring about the desired production. There is nothing in the order of the Magistrate to show that any circumstances justifying the issue of a search-warrant in the first instance were brought to his notice or were considered by him. 9. The reference is accepted and the order of the Magistrate directing the search of the truck is quashed and the truck, if seized, shall be released. Reference accepted.