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2011 DIGILAW 289 (MAD)

Eswaramurthy v. Sub-Inspector of Police

2011-01-20

S.NAGAMUTHU

body2011
Judgment :- 1. This is unfortunate case where because of the wrongful exercise of power by the learned Judicial Magistrate No.II, Tirupur, the Petitioner who has lost possession of properties knocks at the doors of this Court seeking to quash the said order passed by the learned Magistrate. 2. The facts of the case are as follows: The second Respondent claims that he is the owner of an offset printing machine. He would further allege that the said property was illegally retained by the Petitioner. With this allegation, the Second Respondent filed a Petition purportedly under Section 93, Cr.P.C. before the learned Judicial Magistrate No.II, Tirupur in C.M.P. No.422 of 2008 in which, the Petitioner was shown as the Respondent. In the said Petition, even without notice, the learned Magistrate passed an order on 16.02.2008 to the following effect: “Issue warrant to produce the case properties. Search warrant in the name of the Inspector of Police, Thiru. Manimaran, Tirupur South Police Station and to produce the above properties within 15 days from the date of receipt of warrant.” 3. In pursuance of the said warrant, the Inspector of Police, searched the premises in question on 25.02.2008, prepared a search list containing as many as 7 properties, seized them from the custody of the Petitioner and produced the same before the learned Magistrate on the same day. The learned Magistrate, thereafter, passed an order on the same day returning all the seven properties to the Second Respondent on condition of execution of a bond for a sum of Rs. 2,00,000/-. On account of the said order, the properties were handed over to the Second Respondent and the Second Respondent is now in possession of the same. The said order is under challenge in this Petition. 4. I have heard the learned Counsel on either side and also perused the records carefully. 5. The main contention of the learned Counsel for the Petitioner is that the search warrant issued by the learned Magistrate and the consequential order returning the property to the Second Respondent are wholly without jurisdiction. I find every force in the said argument for the reasons that follow: Chapter VII of the Code of Criminal Procedure speaks of process to compel the production of things. I find every force in the said argument for the reasons that follow: Chapter VII of the Code of Criminal Procedure speaks of process to compel the production of things. Section 91(1), Cr.P.C. speaks of issuance of summons for production of documents or things other than the documents or things in the custody of Postal or Telegraph Authority. Section 92(1), Cr.P.C. speaks of issuance of summons to the Postal or telegraph Authority for the production of documents, parcel or things in the custody of Postal or Telegraph Authority respectively. Before proceeding further, let us reproduce Sections 91 (1) and 92 (1) of Cr.P.C. which reads as follows: “9.Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a Police Station considers that the production of any document of or other thing is necessary or desirable for the purposes of any investigation, inquiry, may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order.” “92. Produce as to letter and telegrams.- (1) If any document, parcel or thing in the custody of a Postal or Telegraph Authority is, in the opinion of the District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court wanted for the purpose of any investigation, inquiry, trial or other proceeding under this code, such Magistrate or Court may require Postal or Telegraph Authority, as the case may be, or deliver the document, parcel or thing to such person a the Magistrate or Court directs.” 6. A close look into the above provisions would make it abundantly clear that summons under Section 91 (1), Cr.P.C. or 92 (1), Cr.P.C. could be issued by the Magistrate for the production of any document or thing, if only, the same is required for any investigation, enquiry, trial or other proceedings under the Code of Criminal Procedure by or before the said Court. In other words, no such summons could be issued under the provision by any Magistrate unless there has been any enquiry or trial or other proceeding pending against him and production of document or thing is necessary for the same. 7. In other words, no such summons could be issued under the provision by any Magistrate unless there has been any enquiry or trial or other proceeding pending against him and production of document or thing is necessary for the same. 7. Now let us pass on to Section 93(1) Cr.P.C. under which, in the instance case, search warrant was issued by the learned Magistrate which reads as follows: “93. When search warrant may be issued.- (1) … …. …. (a) Where any Court has reason to believe that a person to whom a summons or order under Section 91, or a requisition under sub-section (1) of Section 92, has been , or might be, addressed, will, not or would not produce the document or thing as required by such summons or requisition, or (b) Where such document or thing is not known to the Court to be in the possession of any person, or (c) Where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection. 8. A cursory glance through the above provision would make one to understand without any doubt that if only the learned Magistrate has got reasons to believe that the summons issued under Section 91(1) or 92 (1), Cr.P.C., shall not be fruitful as the person to whom the same has been issued will not produce the thing/document before the learned Magistrate, in such an event, the Magistrate may issue a search warrant. Therefore, in the absence of any enquiry or trial or other proceeding pending on his file and that the document or thing in question is required in Court for the purposes of trial or enquiry and in the absence of reasons to believe that issuance of summons under Section 91(1) or 92(1), Crr.P.C., will not be fruitful, the Magistrate cannot issue search warrant under Section 93(1), Cr.P.C., Further, in pursuance of the warrant issued, if any document or property is produced before the Court, thereafter, the Magistrate would be well within his power to pass an appropriate order regarding the disposal of the said property. 9. In the instant case, admittedly neither there was any trial nor was there any enquiry or any other proceeding pending before the learned Magistrate. 9. In the instant case, admittedly neither there was any trial nor was there any enquiry or any other proceeding pending before the learned Magistrate. Strangely, the learned Magistrate entertained the Petition filed by the Second Respondent under Section 93, Cr.P.C., and even without notice to the Petitioner herein, passed an order issuing search warrant to the Police. Thus, it is ipso facto clear that the Magistrate has acted without jurisdiction in issuing the warrant. 10. As I have already stated, the search warrant was issued only in respect of one property namely, offset printing machine alone. But the Inspector of Police seized not only the offset printing machine but six other properties belonging to the Petitioner also and produced them all before the learned Magistrate. When the properties were so produced, the learned Magistrate did not even care to verify whether the properties seized were in consonance with the warrant issued. The learned Magistrate did not even question the Inspector of Police as to why and how, he seized six 6 properties, which were not included in the warrant. 11. After the properties were produced by the Inspector of Police in pursuance of the search warrant, the learned Magistrate has committed yet another illegality in ordering the return of properties to the Second Respondent. Because of this order, now the properties are in possession of the Second Respondent. When there is a contentious issue in respect of title for the properties between the Petitioner and the Second Respondent, it is unfortunate that because of the wrong exercise of the jurisdiction by the Magistrate, the Petitioner who was all along in possession of the properties has been now dispossessed. The Second Respondent has abuses the process of Court to secure the custody of the property by means of a short cut method. The learned Magistrate has fallen prey to the said ingenious act of the Second Respondent. I have no doubt that the order impugned in this Petition will only cause a dent in the faith the people have in the judiciary. The learned Magistrate has shown supine indifference to her Constitutional obligation in the matter of justice delivery. I am hopeful that at least in future, the learned Magistrate concerned will be careful in the discharge of her judicial function. The learned Magistrate has shown supine indifference to her Constitutional obligation in the matter of justice delivery. I am hopeful that at least in future, the learned Magistrate concerned will be careful in the discharge of her judicial function. For all these reasons, I have no hesitation to quash the impugned proceedings and to order for the restoration of status quo ant. 12. In the result, the Criminal original Petition is allowed. The entire proceeding in C.M.P. No.422 of 2008 is quashed. The Second Respondent is directed to hand over the property forthwith to the learned Judicial Magistrate No.II, Tirupur who in turn shall return the same to the Petitioner under acknowledgement. The said exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order. After returning the property, the Second Respondent will be at liberty to work out his remedy in the manner known to law to claim the said property, if he is legally entitled to. If the 2nd Respondent fails to comply with this direction within the time stipulated, the Petitioner may approach this Court with appropriate Petition.