NARENDRA BHIMABHAI PATEL v. STATE — 1983 DIGILAW 145 (GUJ)

D. H. SHUKLA, J. ( 1 ) THE petitioners challenge by the present petition an order passed by the learned Metropolitan Magistrate Court No. 15 City of Ahmedabad whereby in exercise of the powers vested in him under sec. 93 of the Code of Criminal Procedure 1973 (hereinafter referred to as the Code) he issued warrant bearing No. 50 of 1983 dated 8-6-1983 authorising the Police Officer of the Ellisbridge Police Station to seize transport vehicles bearing Nos. GRG 900 GRG 1072 GRS 5406 GRS 5407 GTD 4927 and GTD 5600 belonging to them. ( 2 ) 2 M/s. Sugesan Co. (Pvt.) Limited having its office at Madras has filed Criminal Complaint bearing Inquiry Case No. 27 of 1983 in the Court of the Metropolitan Magistrate Ahmedabad against the petitioners through its Branch Manager Mr. Manish K. Shah for the offences punishable under secs 420 and 406 of the Indian Penal Code alleging inter alia that the petitioners as partners of M/s. Nabros had executed an agreement on 30-4-1981 with M/s. Sugesan Company (Pvt.) Limited. (hereinafter referred to as the Company for the sale of transport vehicles at a total price of Rs. 35 0 0 (Rupees thirtyfive lacs ). The Company also alleged that it had paid to the petitioners a total sum of Rs. 16 50 0 by 18-9-1982 but the petitioners did not give delivery of the vehicles. The Company further alleged that when the agreement for sale was executed the petitioners had deliberately suppressed the fact that one of the vehicles was hypothecated with Bank of Baroda and that two other vehicles did not belong to the petitioners. The Company further alleged that the petitioners had pressurised them to part with a sum of Rs. 2 50 0 by way of interest as well as to apply to the Bank of Baroda for the transfer of hypothecation loan. The Company further alleged that on 11-4-1983 the petitioner No. 1 called on the Company at Madras and agreed to give delivery of the vehicles on 30-4-1983 and induced the Company to part with 10 post-dated cheques each of Rs. 1 0 0 (Rupees one lac) which were to be presented after the delivery of the vehicles. The Company further alleged that on 11-4-1983 the petitioner No. 1 called on the Company at Madras and agreed to give delivery of the vehicles on 30-4-1983 and induced the Company to part with 10 post-dated cheques each of Rs. 1 0 0 (Rupees one lac) which were to be presented after the delivery of the vehicles. The further agreement was thus made on the visit of petitioner No. 1 at the Companys office at Madras and the agreement was evidenced by a written statement dated 11-4-1983 which was signed by the petitioner No. 1 on behalf of the petitioners and by one Bipinbhai K. Sheth and Rajendra K. Sheth for the Company. A copy of the same is produced at Annexure 5 to the Affidavit-in-Reply of the respondent No. 2. In order to inspire confidence in the mind of the Company the petitioners had invited the Companys officers to visit Ahmedabad to take inspection of the vehicles. Manishbhai Vijaybhai Pankajbhai and operator Kanakraj went to take inspection of the vehicles on 17-4-1983 when they realised that vehicles bearing Nos. GTD 5600 and GTD 4927 were not to be found. It was also realised that the original and in the vehicle (Hippo Prime Mover) bearing No. GRG 1072 was changed by the petitioners. They made an inquiry from the petitioner No. 1 who was present but no satisfactory reply was given. The Officers of the Company thereupon made an inquiry at the R. T. O. about the vehicles Nos. GTD 5600 and GTD 4927 and it was found that in the R. T. O. Records these two vehicles did not run in the name of the petitioner but they were in the name of Narendra and Brothers and it was further found that these two vehicles were hypothecated to Navdeep Co-operative Bank Ltd. The Company thus found that although the petitioners knew that these two vehicles did not stand in the names of the petitioners and that one of them was hypothecated with Navdeep Co-operative Bank Ltd. they suppressed these facts from the Company and induced the Company to enter into the above stated contract and also illegaly induced the Company to part with a large amount. It is alleged that the petitioners had by deliberate design fraudulently and dishonestly induced the Company to part with a large amount which they would not have done had they known the true facts. The petitioners were to hand over the possession of the vehicles on or before 30-4-1983 to the Company and thereafter they had to negotiate the two cheques amounting to Rs. 2 lacs but they deliberately and with a view to commit fraud presented the two cheques of Rs. 2 lacs by depositing them in their accounts without handing over the delivery of the vehicles. The Company of course stopped the payment of these cheques. It is alleged that the petitioners have thus cheated the Company by making it part with a sum of Rs. 16 50 0 by giving a false promise to deliver the vehicles in question and thus the petitioners are guilty of offences punishable under secs. 420 406 120 read with sec. 34 of the Indian Penal Code. A complaint was filed in the Court of the Metropolitan Magistrate Ahmedabad on 11-5-83. ( 3 ) 3 The learned Magistrate before whom the said complaint was presented directed the Police Officer of the Ellisbridge Police Station to make investigation into the said complaint under sec. 156 (3) of the Code. [after stating certain facts His Lordship further observed :] ( 4 ) 6 The Police Officer of the Ellisbridge Police Station went to the residence of the petitioner No. 2 in the afternoon of 11-6-1983 and showed warrant No. 50/83 dated 8-6-1983 issued by the Metropolitan Magistrates 15th Court Ahmedabad authorising him to seize the vehi- cles mentioned in the warrant. The warrant was issued under sec. 93 of the Code. The Police Officers seized three vehicles bearing No. GRG 90 GRS 5406 and GRS 5407 and sealed them with a written notice directing not to move the said vehicles till further orders from the Court. A copy of the said notice signed by the Police Inspector is produced at Annexure `b to the petition. Three other vehicles were out of the station on that day and therefore they could not be seized by the Police Officer. The petitioners apprehended that those three vehicles were also likely to be seized. Their apprehension was fortified because the concerned Police Officer demanded the address of the petitioners at Bombay and Madras. Three other vehicles were out of the station on that day and therefore they could not be seized by the Police Officer. The petitioners apprehended that those three vehicles were also likely to be seized. Their apprehension was fortified because the concerned Police Officer demanded the address of the petitioners at Bombay and Madras. The petitioners have therefore in order to quash and set aside Warrant No. 50/83 dated 8 and for a direction to the Police Officer to remove the seals affixed on the vehicles aforementioned filed the present Special Criminal Application under Art. 227 of the Constitution of India and under sec. 482 of the Code. ( 5 ) DURING the hearing of this Special Criminal Application before me the Company has filed an affidavit-in-reply sworn by Manish Kantibhai Sheth who is the respondent No. 2. It is contended that the matter is at present at the inquiry stage and no report and/or charge-sheet had been filed by the Police before the Court and there- fore the High Court would not normally interfere in the investigation. ( 6 ) IT is further contended that the petitioners have not disclosed the correct picture of the transaction which had taken place between the Company and the petitioners and that they have suppressed the material incidents which constituted the offence. In the affidavit-in- reply it is elaborately made out as to how the petitioners are guilty of a deliberate suppression vary in their application. It is reiterated that the petitioners never disclosed to the respondent No. 2 or the buyers that the two vehicles above referred to were not registered in the name of Nabros which was the contracting party nor did the petitioners disclose to the purchasers that those two vehicles were hypothecated with Navdeep Co-operative Bank Ltd. Along with the affidavit-in-reply a xerox copy of the Registration Certificate of the two vehicles bearing No. GTD 5600 and GTD 4927 is produced to show that the certificate mentions the hypothecation of these two vehicles with Navdeep Co-operative Bank Limited Navrangpura. It is also averred that this Certificate was produced before the authorities during investigation. It is further averred that the respondent No. 2 took inspection of the vehicles on 17-4-1983 and it was found that vehicles Nos. GTD 5600 and GTD 4927 were not in the garage. It is also averred that this Certificate was produced before the authorities during investigation. It is further averred that the respondent No. 2 took inspection of the vehicles on 17-4-1983 and it was found that vehicles Nos. GTD 5600 and GTD 4927 were not in the garage. It was also found that the axel of the Hippo Prime Mover GRG 1072 had been changed and the petitioners could not give any explanation in this behalf. It is further averred that before making the application under sec. 93 of the Code the deponent the respondent No. 2 had accompanied the Police Officer and it was found that the petitioners were trying to remove the important and integral parts of the vehicles in question. It was further found on inspection that 64 tyres of Vehicles Nos. GRS 5406 and GRS 5407 were removed and thus these two vehicles were not in a roadworthy condition as they were required to be under the terms and conditions of the agreement dated 11-4-1983. The investigation further disclosed that 10 tyres of the Prime Movers were removed and the body rested on wooden planks battery was removed and the drivers seats were also removed. Number on the bumper was removed by painting it. Such and other acts of misconduct were committed by the petitioners as reflected by the Panchnama which were drawn by the Police Officers in the presence of Panchas Savan Chinubhai Patel and Yogesh Shantilal Shah. It is averred that the aforestated facts clearly show the justification of Sling an application under sec. 93 of the Code inasmuch as the petitioners were trying to destroy the evidence in respect of the vehicles sold to the Company with a view to preventing the Company from establishing the identity of the vehicles. It is alleged that these and other important facts are deliberately suppressed by the petitioners in their application and that is one ground for rejecting the application. . . . . . . . . . . . . . . . . . . . . [after stating certain facts His Lordship further observed:] ( 7 ) BEFORE dealing with the submissions made before me by Mr. . . . . . . . . . . . . . . . . . . . . [after stating certain facts His Lordship further observed:] ( 7 ) BEFORE dealing with the submissions made before me by Mr. D. F. Amin the learned Advocate for the Petitioners I should like to mention at this stage that I find substantial merit in the contention raised by the respondent No. 2 in his affidavit in reply that the petitioners are guilty of deliberate suppression vari as regards all the details of the transaction in question and that on this preliminary contention alone this Special Criminal Application is required to be rejected. The petitioners have narrated the transaction only upto the stage of the delivery of the ten post-dated cheques of Rs. 1 lac each but material developments thereafter have not been placed for the information and knowledge of the Court. The entire incidence of inspection of the vehicles by the officers of the Company and the consequent findings of tampering with the vehicles is not disclosed by the petitioners in their application. I do not agree with the averments made in the affidavit-in-rejoinder that the petitioners have given only a gist of the transaction and that they are not guilty of deliberately suppressing any detail. I need not reproduce the elaborate contention taken in affidavit-in-reply as regards the extent of suppression by the petitioners in their application since it is all on record and since a major portion of which I have already reproduced above. It does appear to me that the petitioners have not come with clean hands before this Court. Their conduct in general as regards the transaction and the deliberate suppression of relevant facts in their application disentitles them in limine from obtaining any relief under Arts. 226 and; 227 of the Constitution of India. This is a settled legal position. Petitioners who invoke the extraordinary jurisdiction of the High Court under Art. 226 and/or Article 227 of the Constitution are required to exercise utmost care inform themselves fully of every stage of the proceedings that have taken place upto the date the petition is filed give a full and true account of those proceedings file all the necessary documents in support of their averments and then claim relief on the basis of facts disclosed in the petition. It is not open to a petitioner under Art. 226 or Article 227 of the Constitution to pick and choose his own facts or to determine in advance what is relevant and material omit to mention all material facts and proceedings and orders and then claim that he has acted bona fide even though he has made untrue statements omitted to inform the Court of all the proceedings and the orders passed at different stages in the proceedings upto date and claim indulgence. [vide S. H. Motor Transport Co. v. Motilal and Others A. I. R. 1965 Bombay 24 (D. B.) ( 8 ) CONSIDERING the stakes involved in this matter as well as considering the settled legal position that the issuance of the search warrant under the provisions the Code (secs. 91 to 94 in particular) is a grave act on the part of the judicial authority I do not propose to dispose of this Special Criminal Application only on the question of the duty of the petitioner to act in a bona fide manner and to go to the Court without breast. I propose to consider hereinafter all the submissions made before me by Mr. D. F. Amin the learned Advocate for the petitioners in order to deal with this application on the merits as well. ( 9 ) MR. Amins submission was that the order passed by the Metropolitan Magistrate for the issuance of the warrant is without application of mind. There are no reasons given as to what justified him to issue the warrant. It is not a speaking order. The Metropolitan Magistrate has not even specified under which specific sub-sec. of sec. 93 of the Code was he directing the issuance of a search warrant. The order thus does not satisfy the requirement of sec. 93 of the Code and the issuance of the warrant is thus unjustified. The Metropolitan Magistrate should have satisfied himself that the production of the vehicles in question was necessary or desirable for the purposes of investigation inquiry trial or other proceedings under the Code and the order should have reflected the grounds on which the Metropolitan Magistrate was so satisfied. In Mr. Amins submission on the aforesaid count the order was without jurisdiction and hence the present Special Criminal Application would lie under Art. 227 of the Constitution of India or under sec. 482 of the Code. In Mr. Amins submission on the aforesaid count the order was without jurisdiction and hence the present Special Criminal Application would lie under Art. 227 of the Constitution of India or under sec. 482 of the Code. Even if the order is an interlocutory order the High Court would be justified in interfering with it under Art. 227 of the Constitution of India if such an order was issued without jurisdiction. In short in Mr. Amins submission there are two grounds to show that the Court lacked in the jurisdiction while it issued the impugned order. Firstly there was non-application of mind altogether and that the order is not a speaking order. Secondly it does not become clear as to how the search warrant was necessary for the investigation of the case. Mr. Amin referred me to the case of H. Hoshide and Another v. Emperor A. I. R. 1940 Calcutta 97 for the following observations :"a search warrant is not to be issued automatically or for the mere asking. It can only be issued when the Court considers that the purposes of an enquiry would be served. The Magistrate must apply his judicial mind to the question and must satisfy himself that the issue of the warrant is necessary and the requirements of the law for the issue of the warrant are present. A search Warrant should not be issued as a matter of course on the bare statement of a Police Officer that a search was necessary. When it appears that a Magistrate has not applied his mind in this way and when it appears that action has been taken on insufficient material. High Court will always interfere. " ( 10 ) HE also referred me to some other authorities on the same point but I do not wish to duplicate the citations. ( 11 ) MR. Amins above argument is indeed academically sound but considering all the circumstances on the record of the case I am of the view that it will not affect the impugned warrant issued by the Metropolitan Magistrate. ( 12 ) WE have to bear in mind the elaborate complaint which was filed before the Metropolitan Magistrate (a copy of which is at Annexure A Inquiry Case No. 30/83 ). I have reproduced the broad contents thereof above. ( 12 ) WE have to bear in mind the elaborate complaint which was filed before the Metropolitan Magistrate (a copy of which is at Annexure A Inquiry Case No. 30/83 ). I have reproduced the broad contents thereof above. The complaint shows as to at what stage the respondent No. 2 was constrained to file a private complaint against the petitioners. All that had happened on 17-4-1983 when respondent No. 2 and other Officers of the Company had gone to take inspection of the vehicles is of relevance and great importance when we consider the justification and the legality of the issuance of the warrant. We have also to bear in mind the application on affidavit (a copy of which is at Annexure C to the petition) whereby the warrant was prayed for. What the Metropolitan Magistrate has stated in his order when translated into English reads thus:"on considering the stated facts and circumstances search warrant to be issued and to be immediately implemented under sec. 93 Criminal Procedure Code". ( 13 ) WHEN the question is considered as to whether the judicial authority has applied its mind to the question or not it is not always the contents of the order that are to be taken into consideration but also the facts and circumstances under which he did it and the material that he had before him at the time of passing of the order. It is not always necessary that the facts and circumstances as well as the material on record are reproduced in the order in order to reflect that it is a speaking order or that it is an order passed after an application of mind. The basic requirements of the application of mind as well as that the order should be a speaking order can be spelt out by relating the order with the circumstances of the case and the material on the record before the Officer. These are always questions of facts and must be answered in each case after taking all relevant factors into account. These are always questions of facts and must be answered in each case after taking all relevant factors into account. ( 14 ) THE Division Bench of the Calcutta High Court in the case of Hasimara Industries Ltd. and Another v. The Company Law Board and Others 1976 Criminal Law Journal 50 observed thus: ( 15 ) WE have set oat above the order which the Chief Presidency Magistrate passed on 4/06/1971 In this order he has stated (a) that he has considered the materials placed before him (b) that he has perused the petition and (c) that he is satisfied that the documents mentioned in the petition would be required for investigation. From these three statements of his it is legitimate for us to conclude that he had given his consideration to the matters placed before him in the manner required by clause (j) of sec. 96 (1 ). The First Information Report and the petition have given details of alleged manipulation of transactions by the appellants and on the basis of those details if the Chief Presidency Magistrate was satisfied that an order for a general search should be made we cannot hold that the satisfaction was unjustified or that there was no application of mind by him. ( 16 ) THE Division Bench has further referred to the case of Manicklal Mondal v. The State A. I. R. 1953 Cal. 341 for the following further observations:"this limb of sec. 96 (1) came up for consideration in Manick Lals case. In that case the Magistrate did not record in writing his reason to believe. This Court is of opinion that. . . it does not appear from the section itself that the Magistrate was bound to record his reasons in writing. All that the section says is that the Magistrate must have reason to believe that such is the state of affairs. In other words the Magistrate must himself be satisfied that there is necessity for the search warrant to be issued as otherwise the things would not be produced. Apart from this it appears that there were ample materials on which search warrant should have been issued by the learned Magistrate" ( 17 ) IT is pertinent to observe that in the present petition the Metropolitan Magistrate in the impugned order has stated Considering the stated facts and circumstances search warrant must be issued. Apart from this it appears that there were ample materials on which search warrant should have been issued by the learned Magistrate" ( 17 ) IT is pertinent to observe that in the present petition the Metropolitan Magistrate in the impugned order has stated Considering the stated facts and circumstances search warrant must be issued. Considering is the English equivalent I have supplied -for the Gujarati words 2 which clearly indicate that Metropolitan Magistrate had taken into account all the materials that were before him. Under the circumstances therefore it cannot be said that the issuance of the order by the Metropolitan Magistrate was without application of mind or that it should fail because speaking order. ( 18 ) THERE is also no force in the submission that the impugned order does not show as to how was the production of the vehicles necessary for the purpose of investigation. Mr. Amin submitted that it is provided in sec. 91 (1) of the Code that a production of a document or other thing could only be directed if its production was necessary or desirable for the purpose of any investigation inquiry trial or other proceedings under the Code. If we read the complaint itself there is enough material to come to the conclusion as to how the production of the vehicles was necessary for the purposes of investigation and the prospective trial. It was alleged that the offence was constituted by the facts that although two vehicles did not stand in the names of the petitioners they were sought to be transferred; that the petitioners had changed the original axel of Hippo Prime Mover-GRG 1072. The Company has produced along with the affidavit in reply of the respondent No. 2 a xerox copy of the R. T. O. Certificates as well as the Panchnamas which go to show how did the petitioners try to remove the important parts of the vehicles. Considering these circumstances on record it cannot be said that the issuance of the search warrant was without the necessity for the production of the vehicles for the purposes of investigation and trial. It may be that the Metropolitan Magistrate has not specifically indicated as to how was the production necessary for the purpose of investigation but want of such an express indication in the order does not invalidate the order itself. ( 19 ) ANOTHER submission of Mr. It may be that the Metropolitan Magistrate has not specifically indicated as to how was the production necessary for the purpose of investigation but want of such an express indication in the order does not invalidate the order itself. ( 19 ) ANOTHER submission of Mr. Amin as noted above was that the Metropolitan Magistrate has not indicated under which of the sub-sections of sec. 93 of the Code was the warrant issued. Mr. Amin submitted that the warrant could not be deemed to have been issued under sec. 93 (1) (c) of the Code because this is not a general search warrant. It also would not be under sec. 93 (1) (b) of the Code because sec. 93 (1) (b) of the Code relates to the issuance of a warrant where such document or thing is not known to the Court to be in possession of any person. He submitted that therefore by a process of elimination we must conclude that the search warrant was issued under sec. 93 (1) (a) read with sec 91 (1) (i) of the Code. Mr. Amin stated that if this is so the issuance of the warrant is invalid as it is issued against the accused. In support of his proposition he cited the case of State of Gujarat v. (1) Shyamlal Mohanlal Choksi and (2) Manubhai Motilal Patel 6 G. L. R. Page 698 which was decided by the Supreme Court. He also submitted that there is no difference between the phrase the accused and a person accused of an offence. He relied upon the cases of In re upputholla Sreenivasulu A. I. R. 1958 Andhra Pradesh 37; State-of Uttar Pradesh v. Deoman Upadhyaya A. I. R. 1960 Supreme Court 1125 and Ramanlal Bhogilal Shah and Another v. D. K. Guha and Others. A. I. R. 1973 Supreme Court 1196 for the proposition that there is no difference between an accused person and a person accused of an offence. ( 20 ) AS against this Mr. P. M. Raval the learned Advocate for the respondent No. 2 submitted that by a process of elimination it is evident that the Metropolitan Magistrate had issued the warrant under sec. 93 (1) (c) of the Code i. e. to say what was directed was the issuance of a general search warrant. He referred me to the application (Annexure C ). Mr. 93 (1) (c) of the Code i. e. to say what was directed was the issuance of a general search warrant. He referred me to the application (Annexure C ). Mr. Raval submitted that although the vehicles were specified it is not specified in the application as to from whose custody the vehicles were to be attached or as to from which place they were to be attached. The warrant must therefore be considered as a general warrant. For that purpose he invited my attention to the case of Kantilal Shankerlal Panchal v. Chhotalal Vaghajibhai Brahmbhatt and Another 7 G. L. R. 963. Sarela J. has observed therein as under;"as regards paragraph 3 it is clear that it relates to a general search or inspection The Code does not specify what is a 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 as 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. e. 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 documents to be seized. Therefore a general search is a search which is general in respect of documents or things to be got by search. 1t may also be general in respect of the place where the document or thing as to be searched for. (Emphasis supplied)". . ( 21 ) IT appears therefore that a search warrant is a particular search warrant or a general search warrant depends upon as to against whom the search is directed in regard to which articles it is directed and as to the place from where it is to be seized. (Emphasis supplied)". . ( 21 ) IT appears therefore that a search warrant is a particular search warrant or a general search warrant depends upon as to against whom the search is directed in regard to which articles it is directed and as to the place from where it is to be seized. If a warrant is specific about the articles to be searched and seized it can nevertheless be general in regard to the place where it is to be searched from and seized. ( 22 ) MR. P. M. Raval usefully cited several propositions from the case of V. S. Kuttan Pillai v. Ramakrishnan and Another A. I. R. 1980 Supreme Court 185. The facts of that case are analogous to those of the present case. A prayer was made to the Sub Divisional Magistrate Always on 4/01/1977 for directing the Deputy Superintendent of Police Always to search the premises styled as the office of H. M. D. P. Sabha Moothakunam and to seize the books documents and papers as set out in the application for issuance of search warrant. The Magistrate had before him a complaint filed by the first respondent Ramakrishnan against the petitioner and five others for having committed offences under secs. 403 409 420 and 477a read with sec. 34 Indian Penal Code. Original accused No. 1 and accused No. 2 the petitioner were respectively President and Secretary of the Sabha and original accused No. 3 to 6 were described as Managers of the Institution. The complainant made an application on 4/01/1977 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 search warrant and in fact it was executed and certain books vouchers and papers were produced before the Court. The petitioner (original accused No. 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 the Supreme Court in Shyamlal Mohanlal v. State of Gujarat (1965) 2 S. C. R. 457 and an earlier decision of V. Khalid J. of Kerala High Court no search warrant could be issued under sec. The learned Magistrate was of the opinion that in view of the decision of the Supreme Court in Shyamlal Mohanlal v. State of Gujarat (1965) 2 S. C. R. 457 and an earlier decision of V. Khalid J. of Kerala High Court no search warrant could be issued under sec. 91 of the Code of Criminal Procedure 1973 and accordingly directed that anything recovered pursuant to the search warrant issued by him be returned to the person from whom the same were recovered. The High Court of Kerala held that the provisions relating to search contained in sec. 93 (1) of the Criminal Procedure Code 1973 are not hit by Article 20 (3) of the Constitution. In the light of these facts the Supreme Court considered several authorities and observed in regard to see. 91 (1) of the Code as under :"in view of the decision in Shyamlal Mohanlals case one must proceed on the basis that a summons to produce a thing or document as contemplated by sec. 91 (1) cannot be issued to a person accused of an offence calling upon to produce document or thing considered necessary or desirable for the purpose of an investigation. inquiry trial or other proceeding under the Code of Criminal Procedure". ( 23 ) HOWEVER the Supreme Court further observed as under:"sec. 93 however. also envisages situations other than one contemplated by sec. 93 for issuance of a search warrant. It must be made distinctly clear that the present search warrant is not issued under sec. 93 (1) (a)". ( 24 ) IT may be noted that the facts of the above-referred ruling would show that they are identical with those of the case before me. See. 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. It is admitted by both the sides before me that sec. 93 (1) (b) of the Code has no application so far as the present case is concerned. Supreme Court observed so far as see. It is admitted by both the sides before me that sec. 93 (1) (b) of the Code has no application so far as the present case is concerned. Supreme Court observed so far as see. 93 (1) (e) of the Code is concerned that it comprehends a situation where the Court may issue a search warrant when it considers that the purpose of an inquiry trial or other proceeding under the Code will be served by a general search or inspection to search seize and produce the documents mentioned in the list. When such a general search warrant is issued in execution of it the premises even in possession of the accused can be searched and documents found therein cab be seized irrespective of the fact that the documents may contain some statements made by the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused. However such a search and seizure pursuant to a search warrant issued under sec. 93 (1) (e) will not have even the remotest tendency to compel the accused to ineriminate himself. ( 25 ) IT was submitted before the Supreme Court in Kuttan Pillais case (supra) that sec. 93 (1) (e) must be read in the context of sec. 93 (1) (d) 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 sec. 93 (1) (c) will have to be ruled out because in such a situation sec. 93 ( a) alone would be attracted. See. 93 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 thing or the place is in possession of a particular person. Sec. 93 (1) (c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. Sec. 93 (1) (c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. One cannot therefore cut down the power of the Court under sec. 93 (1) (c) by importing into it some of the requirements of sec. 93 (1) (b ). No. canon of construction would permit such erosion of power of the Court to issue a general search warrant. It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or thing which the Court considers necessary or desirable for the purpose of an investigation inquiry trial or other proceeding under the Code. The High Court accordingly sustained the general search warrant in this case under sec. 93 (1) (c ). ( 26 ) I have taken the view in this case relying upon the observations from Kantilal Shankerlal Panchals case (supra) and Kuttan Pillais case (supra) that the impugned search warrant issued by the Metropolitan Magistrate was under sec. 93 (1) (c) of the Code. Since the petitioners had not indicated in their application any specific place from where the vehicles were to be searched and seized the order for the issuance of the warrant under sec. 93 of the Code must by a reasonable inference be deemed to be an order for the issuance of a general search warrant as envisaged under sec. 93 (1) (c) of the Code. ( 27 ) MR. Amins further submission was that when the impugned order was passed the Metropolitan Magistrate had not yet taken cognizance of the complaint. He submitted that the order below the complaint was not passed under sec. 202 of the Code but it was an order passed under sec. 156 (3) of the Code. The order was therefore at the pre-cognizance stage. The pre-requisite conditions for the exercise of the jurisdiction were thus absent and therefore also the Metropolitan Magistrate had no jurisdiction to pass the impugned order. ( 28 ) HIS further submission was that the respondents had no locus standi to apply for the search warrant. 156 (3) of the Code. The order was therefore at the pre-cognizance stage. The pre-requisite conditions for the exercise of the jurisdiction were thus absent and therefore also the Metropolitan Magistrate had no jurisdiction to pass the impugned order. ( 28 ) HIS further submission was that the respondents had no locus standi to apply for the search warrant. When the Magistrate passed an order for the investigation the party filing the complaint ceased to be a party and thereafter only the State was the party. On this ground also the Magistrate lacked in the jurisdiction to pass the impugned order. ( 29 ) MR. Amin cited the case of In re Mahomed Tahir A. I. R. 1934 Bombay 104 and case of K. Hoshide and Another v. Emperor (supra) in support of his submission that in order to enable the Magistrate to pass an order for the issuance of the search warrant there must be a proceeding pending before him. The head-notes in In re Mahomed Tahir (supra) run thus:"for a search warrant to be issued under the Criminal P. C. it is not necessary that the proceeding should be actually pending before the Magistrate at the time he issues the warrant. A warrant may be issued for the purposes of an inquiry about to be made provided it is an enquiry under the Code but not for the purpose of an enquiry either being made or about to be made otherwise than under the Code. Hence a warrant issued for the purposes of an enquiry by the customs authorities into an offence under sec. 167 (72) of sea Customs Act is illegal. (Emphasis applied)" ( 30 ) IN that case the warrant was issued under sec. 96 of the Criminal Procedure Code (old) on the strength of a letter addressed to the Chief Presidency Magistrate by the Collector of Customs Bombay. Obviously this ruling has no application to the facts of the present case. In the course of the judgment the learned Judges have drawn from the opinion of Harrington J. which was as follows:"in my opinion sec. 96 only authorises the Magistrate to issue a search-warrant when sitting as a court i. e. when some proceeding under the Code has been initiated before him. And this view is strengthened the form of the search-warrant given in Sch. 96 only authorises the Magistrate to issue a search-warrant when sitting as a court i. e. when some proceeding under the Code has been initiated before him. And this view is strengthened the form of the search-warrant given in Sch. 5 which recites that information has been laid or complaint has been made". ( 31 ) THIS citation runs counter to Mr. Amins submission. ( 32 ) SO far as the case of K. Hoshide and Another v. Emperor (supra) is concerned a reliance was placed by Mr. Amin on the following head-notes:"the third cause of sec. 96 (1) has nothing whatsoever to do with an investigation. It does not provide for any step to be taken in aid of an investigation but it provides for something which the Magistrate may do for the purpose of serving an inquiry trial or other proceeding under the Code. Cl. (3) of sec. 96 (1) does not empower the issue of the warrant to help the investigation by the police and the customs authorities". ( 33 ) THE point in the case involved related to the propriety of the order of a Chief Presidency Magistrate under sec. 96 of the Criminal Procedure Code (old ). The Assistant Commissioner of Calcutta Police in the Detective Department addressed a letter to the Chief Presidency Magistrate (Calcutta and upon the strength of that letter the warrant was issued. The judgment apparently appears to favour the view advanced by Mr. Amin but on a closer scrutiny it would be found that the view of Mr. Amin is not the ratio of the judgment. Thus it is clear that an inquiry relates to a proceeding held by a Court or a Magistrate while an investigation relates to the steps taken by a Police officer or a person other than a Magistrate. . . This confusion in the mind of the learned Magistrate has led to a misapprehension of the true import of cl. 3 of sec. 69 (1) under which according to him he issued the search warrant Now cl. 3 of sec. 96 (1) Criminal P. C. has nothing whatsoever to do with an investigation. It does not provide for any step to be taken in aid of an investigation but it provides for something which the Magistrate may do for the purposes of serving an inquiry trial or other proceeding under the Code. . . . 3 of sec. 96 (1) Criminal P. C. has nothing whatsoever to do with an investigation. It does not provide for any step to be taken in aid of an investigation but it provides for something which the Magistrate may do for the purposes of serving an inquiry trial or other proceeding under the Code. . . . . . . . . . . . Legislature did not provide for action under cl. 3 of sec. 96 (1) for the purpose of an investigation. A Magistrate who utilizes this clause with a view to help in the investigation of an offence does something which the Code does not sanction. He cannot act under this clause unless after consideration he is satisfied that the purposes of an inquiry or trial or other proceeding will be served by a general search. In the present case it is quite clear the learned Magistrate when he issued the warrant did not have in mind any inquiry trial or other proceeding. He issued the warrant to help the investigation by the police and the customs authorities. This cl. 3 of sec. 96 (1) does not empower him to do. ( 34 ) THE facts of the present case are quite different. I have pointed out above the contents of the complaint filed before the Metropolitan Magistrate which clearly show why was the search and seizure of the vehicles necessary for the purpose of the trial based upon the complaint. In Hoshides case (supra) it is further observed as under:"when therefore the Privy Council has laid down that sec. 96 applies not only when there is an inquiry pending but also when an enquiry is about to be made I must hold that a search warrant may be issued legally even though there be no enquiry pending. This however does not help the Crown at all in the circumstances of this case. There is nothing to show that the learned Magistrate issued the warrant because he thought that there was an enquiry about to be made and that the issue of the warrant would help the enquiry. He issued the warrant because he thought that it would help the police or the Customs authorities in their investigations. This as I have said before is no ground for issuing a search warrant under cl. 3 of sec. 96 (1)". He issued the warrant because he thought that it would help the police or the Customs authorities in their investigations. This as I have said before is no ground for issuing a search warrant under cl. 3 of sec. 96 (1)". ( 35 ) THUS Hoshides case (supra) cited by Mr. Amin does not help him as the facts of the present case are quite different. In this case the complaint was already filed by the respondent No. 2 and a Police investigation was directed by an endorsement made on it. Thereafter the parties applied to the Police for seizing the vehicles in question as such seizure was necessary for the purposes of the trial of the petitioner-accused. It was alleged in the application filed for the purpose of obtaining the search warrant that the vehicles provided an evidence of the act of cheating committed by the petitioners and that the petitioners were about to destroy such evidence. It was also averred in the application that the vehicles were important evidence in their complaint and that if they were not immediately seized the whole purpose of filing the complaint would be frustrated. Under the circumstances therefore it cannot be said that the Metropolitan Magistrate had directed the issuance of the warrant to help the Police in their investigation. It can well be said that the power was exercised by the Metropolitan Magistrate in order that such evidence if seized at the proper time would help the cause of a just trial. ( 36 ) I may observe that in Kuttam Pillais case (supra) discussed above the facts were pretty similar and validity of the search warrant issued by the Magistrate was upheld. ( 37 ) THE following observations in the case of Kalinga Tubes Ltd. and Others v. D. Suri end Another A. I. R. 1953 Orissa 153 made by the Division Bench of the Orissa High Court are apposite:"magistrate should be reasonably satisfied that search is likely to be a link in chain normally leading to inquiry under Code. ( 37 ) THE following observations in the case of Kalinga Tubes Ltd. and Others v. D. Suri end Another A. I. R. 1953 Orissa 153 made by the Division Bench of the Orissa High Court are apposite:"magistrate should be reasonably satisfied that search is likely to be a link in chain normally leading to inquiry under Code. In a writ application challenging the issue of warrant the High Court has to see whether as a fact there were sufficient grounds for the issue of the search warrants in question and whether the Magistrate applied his mind judicially to the requirements of the law in this behalf and whether he had relevant and adequate material fox the purpose and satisfy itself that the warrants were not arbitrarily asked for and unreasonably issued-High Court cannot sit in judgment over his opinion". ( 38 ) THERE is one more judgment to be seen. It is the case of Hasimara Industries Ltd. and Another v. The Company Law Board and Others (supra ). The facts thereof indicate that the Under Secretary to the Government of India Department of Company Affairs acting under the direction of the Secretary sent a complaint to the Director Central Bureau of Investigation and Inspector General of Police Delhi Special Police Establishment regarding the commission of the offences of criminal breach of trust criminal misappropriation cheating forgery falsification of accounts and criminal conspiracy in respect of a sum of more than two crores and two lacs of rupees. On the receipt of the complaint on 17/05/1971 Delhi Police Establishment recorded a First Information Report and on 4/06/1971 the Deputy Superintendent of Police of the Delhi Special Police Establishment filed the First Information Report before the Chief Presidency Magistrate Calcutta. The Chief Presidency Magistrate recorded in the order-sheet that he had seen the report. On the same day the said Deputy Superintendent made an application to the Chief Presidency Magistrate for issue of search warrant under sec. 96 of the Code of Criminal Procedure to search some places of business and to seize incriminating documents therefrom. It was stated that this search warrant was necessary for the purpose of the investigation of the Investigating Officer. The Magistrate accordingly issued the warrant and this order came to be challenged. Counsel for the appellant contended that the Courts power under sec. It was stated that this search warrant was necessary for the purpose of the investigation of the Investigating Officer. The Magistrate accordingly issued the warrant and this order came to be challenged. Counsel for the appellant contended that the Courts power under sec. 94 (1) may be exercised for the purpose of any (a) investigation (b) inquiry (c) trial or (d) other proceeding under the Code. He further argued that this shows that the Court has no power to issue a search warrant in respect of an investigation under the Code or in aid of an investigation under the Code. Inasmuch as the present search warrant had been issued for the purpose of investigation it is not valid in law. This argument was negatived by the Division Bench relying upon the case of Kaverappa v. Sankanayya 1965 Criminal Law Journal 225. The Division Bench stated that they were in agreement with the Mysore view that an investigation under the Code is a proceeding under the Code within the meaning of the para 3 of sec. 96 of the Code. From that point of view the general search warrant which was issued by the Chief Presidency Magistrate in aid of the investigation under the Code was valid. ( 39 ) IN the case before me when the Magistrate passed the impugned order he had already the complaint before him. The necessity for issuance of the search warrant was re-emphasised in the application to obtain the warrant (Annexure-C ). Merely because the Magistrate had directed an investigation under sec. 156 (3) of the Code it cannot be said that the Magistrate had no jurisdiction to pass the impugned order for the issuance of a search warrant. Even if the Magistrate had not taken the cognizance of the matter in its technical sense the Magistrate was still concerned with the inquiry or the trial which was in all probability to be held before him and had therefore the jurisdiction to pass an order under sec. 93 (1) (c) of the Code. Under the aforesaid factual circumstances and the legal position I do not accept Mr. Amins argument above formulated and reject it. ( 40 ) MR. Amins second argument that the respondent No. 2 had no locus standi to apply for an order under sec. 93 (1) (c) of the Code has also no merit. 93 (1) (c) of the Code. Under the aforesaid factual circumstances and the legal position I do not accept Mr. Amins argument above formulated and reject it. ( 40 ) MR. Amins second argument that the respondent No. 2 had no locus standi to apply for an order under sec. 93 (1) (c) of the Code has also no merit. Firstly the respondent No. 2 had applied to the police for the search and seizure of the vehicles but he felt that his request was not acceded to by the Police Department. He therefore felt constrained under the circumstances to apply to the Court before whom the complaint was filed to give necessary direction in the matter to the Police. He is not a stranger to the affair but he representing the Company was vitally interested in the outcome of the complaint. How can we say that he has no locus standi to ask for the necessary relief from the Court Secondly perusal of sec. 93 (1) (c) of the Code shows no fetters on the powers of the Court that they could be exercised only when they were invoked by the Investigating Officer. The powers are conferred in a wide language so as to cover the application for the necessary order under sec. 93 (1) (c) of the Code by a person who is aggrieved by the state of affairs. Thus there is no force in this argument of Mr. Amin and I reject it. . ( 41 ) I have coveted above all the arguments which were submitted before me by Mr. Amin. For the reasons aforesaid I have rejected them. ( 42 ) IN the result this Special Criminal Application fails and it is rejected. Interim stay vacated. Rule is discharged. Petition rejected. .