A. S. SARELA, J. ( 1 ) IN this Criminal Revision Application the legality and the propriety of the order of search warrant issued under sec. 96 (1) of the Criminal Procedure Code by the City Magistrate Third Court Ahmedabad in a case pending before him has been challenged by the accused in that case. The opponent No. 1 to this revision application is the original complainant and the opponent No. 2 is the State of Gujarat. The opponent No. 1 will be referred to hereinafter as the complainant and the applicant as the accused. ( 2 ) THE material facts are these. On 17-3-1966 the complainant filed a complaint before the City Magistrate alleging that the accused had cheated him and committed an offence under sec. 420 Indian Penal Code. The alleged cheating concerns some machinery the details of which were set out in a separate application made by the complainant on the same day to the Magistrate in which he sought a search warrant in respect of that machinery. I shall come to that application presently. In the complaint the case of the complainant was that the accused had agreed to sell his machinery to him for Rs. 14000/had passed a written agreement to that effect had obtained the price from him and passed a receipt for payment of that price and had told him to collect the machinery from his place. All this according to the complainant took place on 16-3-1966. It is then alleged in the complaint that when the complainant went there to collect the machinery as agreed upon he was obstructed by the family members of the accused and the accused also denied the receipt of the money and the liability to hand over the machinery Accordingly he came to the court with this complaint on 17-3-1966 alleging an offence of cheating against the accused. On the same day he made to the court the application earlier mentioned for a search warrant. In that application he alleged that if the accused comes to know of the filing of the complaint he would shift the machinery and in that event the complaint made by the complainant would be of no avail as the machinery was an important piece of evidence. He therefore prayed that the machinery betaken into the custody of the court immediately by a search warrant. He therefore prayed that the machinery betaken into the custody of the court immediately by a search warrant. The learned Magistrates order on that application is Search Warrant to issue. In execution of that search warrant the machinery has been brought to the court. Against that order the accused had filed this revision application. ( 3 ) MR. H. M. Chinoy who argued the matter for the accused applicant made two submissions namely1 That the order issuing a search warrant was not in conformity with the provisions of sec. 96 (1) of the Criminal Procedure Code under which the warrant is issued; and2 That the provisions of sec. 96 (1) cannot be availed of for this purpose as it amounts to compelling the accused to produce evidence which is likely to incriminate him. In the revision application it was also prayed that the process under sec. 420 Indian Penal Code against the accused on the complaint should also be quashed because no offence under sec. 420 I. P. C. was disclosed but this was a matter of civil rights and liabilities of the parties. This last prayer was not argued before me and Mr. Chinoy had stated that he does not desire any decision thereon of the two submissions earlier set out I propose to consider first the first submission. If it is accepted it would not be necessary to consider the second submission. ( 4 ) SUB-SEC. (1) of sec. 96 of the Criminal Procedure Code which calls for construction in this case reads as under:-96 Where any court has reason to believe that a person to whom a summons or order under sec. 94 or a requisition under sec. 95 sub-sec. (1) has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition or where such document or thing is not known to the court to be in the possession of any person or where the court considers that the purposes of any inquiry trial or other proceeding under the 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. The three paragraphs of this sub-section it will be noticed deal with three different situations in which a search warrant can be issued by a court. Before I analyse them it will be convenient to set out in brief Mr. Chinoys argument. He submits that the search warrant in this case cannot fall under the first para of sub-sec. (1) of sec. 96 as the warrant has been issued against the accused for the purpose of getting produced from his possession the machinery specified. He then submits that the warrant does not fall under the second para also because that para would be attracted if it is not known in whose possession the thing to be produced is. Therefore he says the warrant was presumably issued under the third para and his contention is that the requirements of that para are not satisfied both as regards the conditions for the exercise of the power of the Magistrate and the propriety of it and the warrant therefore is neither legal or proper. Mr. Thakore who appears for the complainant-opponent concedes that the first and second paras of subsec. (1) are not attracted but he say that the warrant is a warrant for general search and is legally and properly issued under the third para of that sub-section. I am therefore required to consider only the third para but to be able to appreciate the submissions made it would be appropriate to examine the difference between the three paragraphs. ( 5 ) THE first para of sub-sec. (1) of sec. 96 concerns a situation where a summons or an order under sec. 94 or a requisition under sec. 95 (1) to produce the document or thing could have been issued but the court has reason to believe that the person to whom such summons or requisition is addressed would not produce the document or thing. The first para relates back to sec. 94 and sec. 95 (1 ). It is not necessary for the present case to notice sec. 95 (1) but it is necessary to notice sec. 94. Sub-sec. The first para relates back to sec. 94 and sec. 95 (1 ). It is not necessary for the present case to notice sec. 95 (1) but it is necessary to notice sec. 94. Sub-sec. (1) of that section authorises inter alia a court to issue a summons for the production of any document or thing the production of which the court considers necessary or desirable for the purposes of any investigation inquiry trial or other proceeding under the Code of Criminal Procedure by or before such court. The summons is to be issued to the person in whose possession or power such document or thing is believed to be and the summons is to require him to attend and produce it. Therefore in so far as para one of sub-sec. (1) of sec. 96 read with sec. 94 (1) of the Criminal Procedure Code is concerned it deals with a situation where the document or thing required to be produced is known. The person in whose possession or power the said document or thing is believed to be is also known and the court has reason to believe that if a summons is issued to such a person under sec. 94 (1) he will not or would not produce the document or thing as required by the summons. The second para of sec. 96 (1) concerns a situation where it is not known that the document or thing required to be produced before the court is in possession of any person. There is therefore an uncertainty as to the person in whose possession the document or thing is. However there is no uncertainty about the document or thing itself. The third paragraph deals with a situation where what is considered necessary is a general search or inspection and the said search or inspection is considered necessary by the court for the purposes of any inquiry trial or proceeding under the Code. The underlying principle relating to the production of document or thing therefore is that if the document or thing is known and the person in whose possession it is also known then initially a summons shall issue to that person but such a summons could be dispensed with and a warrant issued in the circumstances set out in sub-sec. (1) of sec. 96. If the person in possession is not known then obviously a summons cannot be issued. (1) of sec. 96. If the person in possession is not known then obviously a summons cannot be issued. In that ease either paragraph 2 or paragraph 3 of sub-sec. (1) may be attracted according as the circumstances bring the ease under the one or the other paragraph. It is obvious that paragraphs 2 and 3 of sub-sec. (1) of sec. 96 relate to a case where the person in possession is not known. It may be that the thing itself is also not known with sufficient particularity for example it may be known that there is a counterfeiting instrument to be searched for but the exact nature of that instrument may not be known in which ease paragraph 3 would be the appropriate paragraph under which action could be taken. The difference between these three paragraphs has been pointed out in State of Gujarat v. Shyamlal (A. I. R. 1965 S. C. 1251:- VI G. L. R. 691 ). In that ease the question for consideration was whether in exercise of the power under sec. 94 (1) of the Code of Criminal Procedure a court has authority to summon a person accused of an offence before it to produce a document or a thing in his possession. The Supreme Court by a majority judgment held that sub-sec. (1) of sec. 94 does not apply to an accused person under trial. It was urged before them that in that ease sec. 96 be rendered useless for no such warrant could be issued to search for a document or thing known to be in possession of the accused person Their Lordships said that that would be so in so far as the first paragraph of sec. 96 (1) was concerned but a general search could still be ordered. Shah J. has analysed sub-sec. (1) of sec. 96 on the footing that sec. 94 (1) does not apply to an accused person. His Lordship states (at page 1252):-THE inter-relation between sec. 94 and the first paragraph of sec. 96 (1) strongly indicates that the power to issue a search warrant under paragraph one of sec. 96 (1) is conditional upon the person who it is apprehended will not or would not produce a thing or document being compellable to produce it in pursuance of a summons under sec. 94 (1 ). If under sec. 96 (1) strongly indicates that the power to issue a search warrant under paragraph one of sec. 96 (1) is conditional upon the person who it is apprehended will not or would not produce a thing or document being compellable to produce it in pursuance of a summons under sec. 94 (1 ). If under sec. 94 (1) a summons cannot be issued against a person accused of an offence a search warrant under sec. 96 (1) paragraph I can evidently not be issued in respect of a document or thing in his possession. The second and the third paragraphs of sec. 96 (1) confer power to issue general warrants. And then at page 1256:-Paragraphs 2 and 3 are undoubtedly not related to sec. 94 (1 ). But under paragraph 2 a court may issue a search warrant where the document or thing is not known to the court to be in the possession of any person; if it is known to be in the possession of any person paragraph 2 cannot be resorted to. Therefore paragraph 2 cannot be resorted to if the person in possession of the document or thing is known. This is plain from the terms of that paragraph. As regards paragraph 3 it is clear that it relates to a general search or inspection. The Code does not specify what is general search but sec. 94 (1) and the first paragraph of sec. 96 indicate what is not a general search. If the document or thing is fairly specified it would be particular search. This is also indicated by sec. 165 of the Criminal Procedure Code which confers powers of search on a police officer during investigation. The section requires him to specify the thing to be searched so far as possible. In Kalinga Tubes Ltd. v. D. Suri (A. I. R 1953 Orissa 153 Their Lordships of the Orissa High Court say that:-IN order that a search is to fall outside the category of a general search it must relate to a particular document or thing specifying the same as far as may be possible. It is not necessary however that the search should be confined to a single document or thing nor is it necessary that the specification should be in any sense precise or give the exact description of each and every one of the document to be seized. It is not necessary however that the search should be confined to a single document or thing nor is it necessary that the specification should be in any sense precise or give the exact description of each and every one of the document to be seized. Therefore a general search is a search which is general in respect of documents or things to begot by search. It may also be general in respect of the place where the document or thing is to be searched for. It is in the light of these differences between the three paragraphs of sub-sec. (1) of sec. 96 that the search warrant in the present case may be examined. But before doing so it is necessary to notice one submission made by Mr. Chinoy. ( 6 ) MR. Chinoy says that sec. 96 (1) of the Criminal Procedure Code confers an extraordinary power of search and therefore when that power is sought to be exercised it can be exercised only within the strict requirements of the law and in a judicial manner. Mr. Chinoy is right. The provisions relating to search warrants indicate this. If the document or thing to be produced is known and the person in possession is known a summons to produce is to issue in the first instance. A search warrant cannot in such a case issue except on the conditions set out in the first paragraph of sec. 96 (1 ). The second paragraph refers to such document or thing meaning a document or thing the production of which the court considers necessary or desirable. Paragraph 3 requires the court to consider whether the purposes of any inquiry trial or other proceeding under the Code will be served by a general search or inspection. In Mulchand v. Emperor (12 Criminal Law Journal 175) the court pointed out that it is a grave step to issue a search warrant directing that a mans house be invaded and searched and observed that it was necessary that power to issue search-warrants should be given but it should not be exercised without full appreciation of the gravity of the step and after the court has come to the conclusion that the step is really necessary in the ends of justice. In Kalinga Tubes Ltd. v. D. Suri (supra) their Lordships of the Orissa High Court after referring to the need to preserve the right of privacy and the law of England that an Englishmans house is his castle observed:-IT is therefore of paramount importance to confine the issue of search-warrants whether of a general nature or of a particular nature to the strict requirements of law. But it is equally important in the larger interests of the administration of justice that public officers engaged in the discharge of their duties connected with investigation or inquiry relating to offences or suspected offences should be afforded fair and reasonable facilities for searches in the course of such investigation or enquiry if applied for on reasonable grounds and if calculated to further such investigation or inquiry. Accordingly the duty of balancing these two conflicting considerations has been vested by sec. 96 in the Magistrate and to a very limited and circumscribed extent only in the police officer under sec. 165 Criminal Procedure Code. The Calcutta High Court in Hoshide v. Emperor (A. I. R. 1940 Cal. 97) has made similar observations and has pointed out that the Magistrate when acting under sec. 96 is acting as a court. It is clear therefore that the Magistrate in issuing a search warrant whether general or otherwise takes a grave step and sec. 96 imposes upon him a duty to see that the requirements of law are strictly complied with before he takes that step. Not only should he see that the conditions for the exercise of the power invoked exist but he must apply his judicial mind to the question whether the case before him is a proper case for the exercise of that power having regard to the nature of the case the grounds on which his power is invoked and the sufficiency of the materials placed before him. ( 7 ) NOW in order to appreciate Mr. Chinoys argument that sec. 96 (1) has not been complied with in this case it is necessary to consider under what paragraph the search warrant in this case has been issued. The application made by the complainant to the court for the issue of a search warrant merely mentions sec. 96 of the Criminal Procedure Code as the provision under which the warrant was sought. The order of the learned Magistrate is very brief. The application made by the complainant to the court for the issue of a search warrant merely mentions sec. 96 of the Criminal Procedure Code as the provision under which the warrant was sought. The order of the learned Magistrate is very brief. It only says Search warrant to issue The copy of the warrant issued is not before this court. Now it is obvious in view of the decision of the Supreme Court in State of Gujarat v. Shyamlal (supra) that this search warrant against the accused could not in law have been issued under paragraph 1 of sec. 96 (1 ). The warrant in this case therefore was not permissible under paragraph 1 of sec. 96 (1 ). It does not appear to fall under paragraph 2 of that sub-section because that paragraph is attracted if the person in possession is not known. In this case the person in possession was known. This was stated in the application for the search warrant itself and the prayer sought was to bring the machinery specified from the possession of that person into the court The question then is whether this warrant can be justified as one issued under paragraph 3. Now that paragraph would be attracted if the court considers that the purposes of any inquiry trial or other proceeding under the Code will be served by general search or inspection. Mr. Chinoys argument is that this is not a warrant for a general search or inspection but a warrant for production of a particular thing from the possession of a particular person and that in any case the order of the court does not indicate that the court considered that the purposes of inquiry trial or other proceeding under the Code will be served by issue of this warrant. The court has given no reasons and no indication that this aspect of the matter was considered by the court. Mr. Chinoy is in my opinion right on both the limbs of his submission. On the tests I have earlier indicated the warrant in this case cannot be said to be a warrant for general search. If the content of the application made to the court for the production of the machinery is analysed it is apparent that the whole object of the application was to get the specified machinery produced from the accused. On the tests I have earlier indicated the warrant in this case cannot be said to be a warrant for general search. If the content of the application made to the court for the production of the machinery is analysed it is apparent that the whole object of the application was to get the specified machinery produced from the accused. To all intents and purposes therefore the warrant that was sought was a warrant against the accused to produce the machinery and the learned Magistrate appears to have acted in purported exercise of the power under paragraph 1 of sec. 96 (1 ). It is because in law that power was not available as decided by the Supreme Court in the above mentioned case that Mr. Thakore for the complainant is forced to seek the shelter of paragraph 3 of sec. 96 (1 ). The warrant when analysed however is not a warrant for general search nor can it be said that the other condition of that paragraph has been satisfied in this case. The other condition is that the court considers that the general search or inspection is necessary for the purposes of inquiry trial or other proceeding under this Code. Mr. Chinoy argues that the court must give reasons in order to indicate that the court applied its mind and having so applied its mind considered that fore the purposes of inquiry trial or proceeding under this Code the issue of warrant for general search was called for. If the court gives reasons that no doubt would be very helpful to the superior court when it examines the challenge made by the aggrieved party against the issue of the warrant but the reasons which induced the court to issue a general warrant may in the absence of any indication in the courts order be gathered if possible from the application on the basis of which the warrant was issued. That no doubt is not a very satisfactory situation and the reasons which moved the court must normally be found in the order of the court itself. I shall however consider whether the reasons given in the application are such as to justify the issue of the warrant in this case. ( 8 ) THE application for the issue of a warrant in this case discloses no satisfactory grounds to justify the issue of a general warrant. I shall however consider whether the reasons given in the application are such as to justify the issue of the warrant in this case. ( 8 ) THE application for the issue of a warrant in this case discloses no satisfactory grounds to justify the issue of a general warrant. All that is stated is that the machinery which is to be brought into the court under the warrant was an important piece of evidence in that case. It has not been stated how it is an important piece of evidence. There does not appear to have been filed any affidavit in support of that application. the learned Magistrate in his order has also not stated how the machinery would be an important piece of evidence or how its production would serve the purposes of any inquiry trial or other proceeding under this Code as contemplated by paragraph 3 of sec. 96 (1 ). The only offence alleged was the offence of cheating and the learned Magistrate could easily have noticed that offence could be established without the machinery. At any rate the production of the machinery in court was not in any way helpful in establishing the offence of cheating. It is true that in the complaint it was alleged that the machinery might be removed by the accused. It is not clear how such removal would make it difficult for the complainant to prove his case. Neither from the complaint nor from the application is it possible to gather any material which would bring the case within the requirements of para 3 of sec. 96 (1) of the Criminal Procedure Code. It is for this reason that the absence of any reasons given by the Magistrate assumes some importance. Therefore even on the footing that a warrant for general search could have been issued inspite of the fact that not only the thing to be searched but the person in whose possession the thing was to be found and the place where it was to be found were particularised in this case the exercise of the powers by the Magistrate was not a proper or judicial exercise of the power. That being so the warrant was not justified and deserves to be cancelled. ( 9 ) THE rule is therefore made absolute and the search warrant issued by the Magistrate on 17-3-1966 is cancelled. That being so the warrant was not justified and deserves to be cancelled. ( 9 ) THE rule is therefore made absolute and the search warrant issued by the Magistrate on 17-3-1966 is cancelled. The machinery brought into the court in execution of that warrant be returned to the accused. Rule made absolute. .