Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 248 (CAL)

SHRUTI BANERJEE (BISWAS) v. RANAJIT BISWAS

2001-04-30

DEBIPRASAD SENGUPTA

body2001
D. P. SENGUPTA, J. ( 1 ) -THIS revisional application is directed against an order dated 5. 2. 2001 passed by the learned Sessions Judge, South 24 Parganas, Alipore in Criminal Revision No. 55 of 2001 directing the learned Judicial Magistrate, 2nd Court, Sealdah to issue search warrant in connection with complaint case No. C-28 of 2001. ( 2 ) THE present complainant/opposite party No. 1, Dr. Ranajit Biswas filed a petition of complaint against the present petitioner, who is his wife, and the sister and brother of his wife. The allegation made in the complaint is that the wife of the complainant used to leave the matrimonial home on trifling matters and used to live for days together at her father's house at Khardah, North 24 Parganas. It was alleged that on 31. 7. 99 she left her matrimonial home and thereafter she did not return. Suddenly on 17. 3. 2000 she along with her brother and sister and three other persons came to the house of the complainant, snatched the key of the flat from the complainant assaulted him and since then the complainant is not allowed to enter into the house and being a Doctor he is living in the doctor's quarters at N. R. S. hospital. The said petition of complaint was filed alleging commission of offence under sections 323/341/406/34 of the Indian Penal Code. On receipt of the petition of complaint the learned Magistrate took cognizance of the offence. After examining the complainant the learned Magistrate was satisfied about a prima facie case under sections 323/341 and 34 IPC. issued process under the said sections. Since the learned Magistrate was satisfied that no prima facie case could be made out under section 406 IPC, no process was issued under section 406 IPC. ( 3 ) IN connection with the aforesaid case the complainant present opposite party No. 1 filed a petition under section 94 Cr. PC. with a prayer for issuing search warrant in respect of some articles including his wearing apparel, medical books and instruments. The complainant produced admit card before the learned Magistrate from which it appeared that the complainant was a candidate for forthcoming post graduate entrance examination. PC. with a prayer for issuing search warrant in respect of some articles including his wearing apparel, medical books and instruments. The complainant produced admit card before the learned Magistrate from which it appeared that the complainant was a candidate for forthcoming post graduate entrance examination. On such application under section 94 Cr PC the learned Magistrate directed notice to be issued calling upon the accused No. 1 (present petitioner) to show cause as to whey the complainant should not be allowed to get back his wearing apparel, medical books and medical instruments which are lying in the house, where the accused No. 1 resides. Such order was passed by the learned Magistrate on 25. 1. 2001. ( 4 ) CHALLENGING the aforesaid order a revisional application was preferred before the learned. Sessions Judge by the complainant/opposite party No. 1. The learned Judge disposed of the said revisional application, set aside the order passed by the learned Magistrate and directed the learned Magistrate to issue search warrant at least for the recovery of wearing apparels, medical books, medical instruments, medical appliances etc. which are required for the purpose of M. S. Examination of the complainant. Against such order passed by the learned Sessions Judge the present revisional application has been preferred. ( 5 ) MS. Jayashree Banerjee, the learned Advocate appearing for the petitioner submits that the learned Magistrate was quite justified in refusing the prayer for search warrant and directing issuance of notice upon the accused to show cause as to why search warrant should not be issued. From the order dated 25. 1. 2001 it appears that the complainant was restrained from entering into his own house on 14. 3. 2000 but he made a prayer for search warrant before the Court only on 24. 1. 2001. The learned Magistrate observed that had there been any urgency in getting back the articles mentioned by the complainant, he could have approached the Court much earlier. Considering the facts and circumstances of this case the learned Magistrate refused to issue search warrant and directed notice to be issued. Ms. Banerjee, the learned Advocate of the petitioner relies on a Division Bench Judgment of Andhra Pradesh High Court reported in 1988 Criminal Law Journal 1876 (M/s. Dinesh Auto Finance v. State of A. P. and Another ). Considering the facts and circumstances of this case the learned Magistrate refused to issue search warrant and directed notice to be issued. Ms. Banerjee, the learned Advocate of the petitioner relies on a Division Bench Judgment of Andhra Pradesh High Court reported in 1988 Criminal Law Journal 1876 (M/s. Dinesh Auto Finance v. State of A. P. and Another ). Quoting the provision as laid down in section 94 Cr PC it was held by the Division Bench of Andhra Pradesh High Court as follows :-"under this section, the Magistrate cannot pass an order as a matter of course. Two requirements are to be fulfilled. One is to make an enquiry in the manner he thinks fit and the second is on the basis of the enquiry he must have reason to believe that the property is a stolen property i. e. , prima, facie he must be satisfied that the warrant sought for is in respect of a stolen property and that prima facie grounds exist for issue of the warrant. ****************under this section, the only question to be considered is whether the property in respect of which a search warrant is sought to be is prima facie a stolen property or whether there are good grounds to believe that it is a stolen property. The learned Sessions Judge has not addressed himself to that question at all. The sine qua non for issuing the search warrant and production of the property is that the Magistrate must have reason to believe that the property is stolen property. Since there is no such finding, the order cannot be sustained. " ( 6 ) MS. Banerjee also relies upon a judgment of Kerala High Court reported in 1985 Criminal Law Journal 1517 (Gangadharan v. Kochappi Cheleappan and Another ). In the said judgment it was held by the learned Single Judge of the said Court as follows:-"in the applicability of section 94, certain conditions are necessary. First of all, the Magistrate must have the information. Secondly, he must conduct such enquiry as he thinks necessary. On the basis of such an enquiry, he must have reason to believe that any place is used for the disposal of stolen property. The order must show that he applied his mind. First of all, the Magistrate must have the information. Secondly, he must conduct such enquiry as he thinks necessary. On the basis of such an enquiry, he must have reason to believe that any place is used for the disposal of stolen property. The order must show that he applied his mind. *************************** One of the components of the information required under section 94 is that the place is used for the deposit of stolen property. That part of information is lacking in this case. The other two conditions namely, the conduct of an enquiry as the Magistrate thinks fit and the reason to believe that any place is used for deposit of stolen property are not at all satisfied in this case. On the information, no enquiry was admittedly conducted. The Magistrate gets jurisdiction to issue an order for search only after taking such enquiry as he thinks necessary. The Legislature has in its wisdom used such a safeguard in order to see that the provision is not abused or misused at the hands of the dishonest litigants. Without conducting an enquiry, the Magistrate cannot get the satisfaction on which he has to act. In an action having adverse reaction on the affected person, the Magistrate is expected to act only after getting reasonable belief. To pass an order, without an enquiry and satisfaction, may not be proper exercise of the jurisdiction. " ( 7 ) RELYING upon the aforesaid two judgments it is submitted by Ms. Banerjee that in the present case the requirement of section 94 Cr. PC are not at all fulfilled. No enquiry was made to ascertain whether the articles in respect of which the search warrant was prayed for was stolen articles or not. There is no "reason to believe" that the property is stolen property. The learned Magistrate initially refused to issue search warrant and directed notice to be issued only for the purpose of ascertaining whether the property in respect of which search warrant is prayed for are stolen property. Ms. Banerjee the learned Advocate draws the attention of the Court to section 410 of the Indian Penal Code, which defines "stolen property". The learned Magistrate initially refused to issue search warrant and directed notice to be issued only for the purpose of ascertaining whether the property in respect of which search warrant is prayed for are stolen property. Ms. Banerjee the learned Advocate draws the attention of the Court to section 410 of the Indian Penal Code, which defines "stolen property". The said section runs as follows:-"stolen property-Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property" whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. " ( 8 ) REFERRING to the aforesaid section Ms. Banerjee points out that in the present case the learned Magistrate refused to issue any process under section 406 of the Indian Penal Code as no prima facie case could be made out by the complainant under the said section. Process was issued only under section 323/341 of the Indian Penal Code. According to Ms. Banerjee since there is no case under section 406 IPC and since the articles does not come within the definition of stolen property as defined in section 410 IPC, the learned, Magistrate was justified in refusing to issue search warrant and directing notice to be issued. Ms. Banerjee further submits that the order passed by the learned Magistrate was an interlocutory order and there was no reason for the learned Sessions Judge to entertain the revisional application against such interlocutory order. Ms. Banerjee points out that the learned Sessions Judge without considering the materials and the relevant provisions of law mechanically disposed of the revisional application, that too without hearing the present petitioner, directing the learned Magistrate to issue search warrant. Another illegality which is pointed out by Ms. Banerjee the learned Advocate is that almost all the articles which were seized by the police while executing the search warrant are household articles. The learned Sessions Judge simply directed to issue search warrant in respect of the wearing apparel, medical books and instruments and medical appliances which were required for the purpose of M. S. Examination. Banerjee the learned Advocate is that almost all the articles which were seized by the police while executing the search warrant are household articles. The learned Sessions Judge simply directed to issue search warrant in respect of the wearing apparel, medical books and instruments and medical appliances which were required for the purpose of M. S. Examination. But while executing the search warrant apart from the medical books, instruments and appliances, every household articles, namely, Telephone set, Video cassettes, Black and White T. V. , Almirah, Book shelf, Sofa-cum-Bed, 6 numbers of Wall Clocks and Time Pieces and one type writer were also scized Ms. Banerjee points out that this is a serious illegality committed by the police officer who executed the search warrant. ( 9 ) MR. Rana Mukherjee, the learned Advocate appearing for the complainant/opposite party submits that search warrant has already been executed and the goods seized by the police are kept at the police station. The said articles may be directed to remain in the custody of the police till the proceeding is disposed of in the Court below. Mr. Mukherjee prays that appropriate direction may be given by this Court directing the learned Magistrate to expedite the proceeding and to conclude the same as early as possible. ( 10 ) I have heard the learned Advocates of the respective parties. I have also perused the orders passed by the learned Magistrate as also the order passed by the learned Sessions Judge, at Alipore. In my considered view the impugned order passed by the learned Sessions Judge, Alipore suffers from very serious illegality. When the learned Magistrate refused to issue search warrant and directed notice to be issued the learned Judge should not have interfered with such order. The learned Judge at best could have directed the learned Magistrate to prepone (sic) the date and to pass appropriate order on the application under section 94 Cr. PC filed by the complainant. The learned Judge had no occasion to direct the learned Magistrate to issue search warrant without hearing the present petitioner although the requirements which are required to be fulfilled in view of the provisions of section 94 Cr. PC are lacking in the present case. PC filed by the complainant. The learned Judge had no occasion to direct the learned Magistrate to issue search warrant without hearing the present petitioner although the requirements which are required to be fulfilled in view of the provisions of section 94 Cr. PC are lacking in the present case. ( 11 ) AFTER hearing the learned Advocates of the respective parties and after considering the orders of both the Courts below I find sufficient merit in the submission made by Ms. Banerjee. The revisional application is accordingly allowed. The impugned order passed by the learned Sessions Judge is hereby set aside. Let urgent xerox certified copied of this order, if applied for, be supplied to the learned Advocate for the respective parties at an early date. C. R. R. 638 of 2001 April 30, 2001 the present revisional application is directed against an order dated 6. 2. 2001 passed by the learned Judicial Magistrate, 2nd Court, Sealdah issuing search warrant and directing the officer-in-charge Beliaghata P. S. to execute such search warrant. By the said order dated 6. 2. 2001 the learned Magistrate issued search warrant for recovery of the articles as per direction of the learned Sessions Judge, as it has already been discussed above in the judgment of C. R. R. No. 718 of 2001. It is submitted by Ms. Banerjee the learned Advocate of the petitioner that the said order of search warrant was passed by the learned Magistrate without proper application of mind and simply as per direction of the learned Sessions Judge, Alipore. Since the said order was passed without application of mind and without complying with the provisions of the Code of Criminal Procedure as stated above in the aforesaid judgment, the impugned order suffers from serious illegality and the same is liable to be quashed. ( 12 ) FROM the order itself it appears that it was passed by the learned Magistrate as per direction of the Sessions Judge. Since there was a direction of the Sessions Judge the learned Magistrate had no other alternative but to issue search warrant. As it has already been held in the judgment aforesaid in C. R. R. No. 718/2001 that the order passed by the learned Sessions Judge suffers from serious illegality, the present impugned order dated 6. 2. Since there was a direction of the Sessions Judge the learned Magistrate had no other alternative but to issue search warrant. As it has already been held in the judgment aforesaid in C. R. R. No. 718/2001 that the order passed by the learned Sessions Judge suffers from serious illegality, the present impugned order dated 6. 2. 2001, which was passed by the learned Magistrate pursuant to the direction of the Sessions Judge, also cannot be allowed to stand. The present revisional application also is allowed and the impugned order is set aside. ( 13 ) LET urgent xerox certified copies of this order, it applied for be supplied to the learned Advocates for the respective parties at an early date. Application allowed.