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2011 DIGILAW 646 (KER)

C. N. Vijayan v. Joby

2011-06-28

THOMAS P.JOSEPH

body2011
JUDGMENT 1. Since the impugned order is passed without notice to respondents 1 to 3, notice to them is dispensed with in this proceeding. Learned Public Prosecutor takes notice for the 4th respondent. 2. Petitioner filed a complaint against respondents 1 to 3 - C.M.P. No.1023 of 2011 in the court of learned Judicial First Class Magistrate-II, Peermade alleging offence punishable under Section 500 of the Indian Penal Code. According to the petitioner, he was in charge of campaigning for the Assembly election for the Congress candidate from Peermade Constituency and while so, on 25.05.2011 in a local news channel - Idukki Vision News run by respondents 2 and 3 a news item was telecast by the first respondent that petitioner is involved in the murder of one Balu. According to the petitioner, that telecast was made by respondents 1 to 3 with intend to defame him. Hence the complaint. Along with the complaint, petitioner filed C.M.P. No.1024 of 2011 under Section 93(1)(c) of the Code of Criminal Procedure (for short, "the Code") for a general search to take into custody the compact disc containing the impugned news item. According to the petitioner that compact disc is kept by the second respondent in his house. Learned Magistrate dismissed C.M.P. No.1024 of 2011 by the impugned order observing that since according to the petitioner the compact disc is kept by the second respondent in his residence a general search as contemplated under Sec.93(1) (c) is not required. Learned Magistrate has observed that for the inquiry under Sec.200 of the Code the compact disc is not necessary. Learned counsel contended that the purpose of ordering search under Sec.93(1)(c) of the Code is also to ensure that the material is not destroyed if a summons is issued to the second respondent under Sec.91 of the Code. Learned counsel contended that issuing search warrant would not amount to testimonial compulsion. Reliance is placed on the decision of this Court in Jayadeva Panicker v. Velayudhan (1986 KLT 1303). According to the learned counsel unless orders are passed the person in custody of the compact disc would destroy it thereby destroying valuable evidence to be collected in the case. I have heard learned Public Prosecutor also. 3. Reliance is placed on the decision of this Court in Jayadeva Panicker v. Velayudhan (1986 KLT 1303). According to the learned counsel unless orders are passed the person in custody of the compact disc would destroy it thereby destroying valuable evidence to be collected in the case. I have heard learned Public Prosecutor also. 3. Under Sec.93 of the Code where any court has reason to believe that a person to whom a summons or order under Sec.91 or a requisition under sub-sec (1)of Sec.92 has been or might be addressed will not or would not produce the document or thing as required by such summons or requisition and the court considers that the purpose of any inquiry, trial or other proceeding it is necessary to get such document or thing the court is empowered to issue a search warrant and the person to whom such warrant is directed shall search or inspect in accordance with such warrant under the provisions contained in the Code. In the decision relied by the learned counsel it is observed in paragraph 7 that the mere fact that the petitioner has mentioned in his application that the questioned documents are kept in the office of the Society and are in the custody of the accused will not take away jurisdiction of the court to exercise power under Sec.93 (1)(c) of the Code and that court has to consider whether purposes of the inquiry will be served by issuing a search warrant under the said clause. If the court finds that in the affirmative, the court has jurisdiction to issue a search warrant. 4. Here, the case of petitioner is that the impugned news item was telecast in the local channel by respondents 1 to 3 and the compact disc containing that news item is kept in the house of the second respondent. That compact disc may be relevant in the inquiry under Sec.200 of the Code as also in the course of trial in case cognizance is taken. These aspects of the matter has not been taken into account by the learned Magistrate while passing the impugned order. Instead, learned Magistrate has observed that for the purpose of inquiry under Sec.200 of the Code the said compact disc is not necessary and a general search is not necessary since according to the petitioner the compact disc is kept in the house of second respondent. Instead, learned Magistrate has observed that for the purpose of inquiry under Sec.200 of the Code the said compact disc is not necessary and a general search is not necessary since according to the petitioner the compact disc is kept in the house of second respondent. In view of what I have stated above, I am inclined to think on the factual situation that learned Magistrate has not considered all relevant aspects while refusing to issue an order as prayed for or, as circumstances warranted. Learned Magistrate has to decide the matter afresh having regard to the circumstances of the case, the purpose for which search warrant is sought to be issued, the object sought to be achieved by production of the compact disc and also possibility of the disc being allegedly destroyed by the person who is said to be in possession of the same, in the light of the observations made in the decision referred supra and pass appropriate orders. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-3, order is set aside. C.M.P. No.1024 of 2011 is remitted to the court of learned Judicial First Class Magistrate-II, Peermade for passing fresh orders in the light of the circumstances stated above and the decision referred supra. Learned Magistrate shall pass appropriate orders as expeditiously as possible having regard to the urgency of the matter.