Mr. Justice Majoj Kumar Mukehrji
1. On February 5, 1980, Kailashpati Dalmia, the opposite party herein, filed a complaint before the Sub-Divisional Judicial Magistrate, Alipore,
against Aftab Ahmed and others alleging commission of offences under sections 147, 148, 448, 341, 323, 324, 326, 325, 379, 380, 427 and 506
of the Indian Penal Code. The material allegations of the complaint are that on February 3, 1980, the accused persons, after forming an unlawful
assembly, trespassed into the premises No. 4, Ballygugne Park Road, Calcutta, which was in possession of the complainant, assaulted the inmates
of the house, caused mischief to the properties lying therein and also committed theft of certain valuable properties. Along with the complaint an
application was filed by the complainant for issuing a search warrant for recovery of valuable ornaments, jewelleries, silver-utensils, valuable
documents and papers, furniture and other house hold articles lying in the said premises and to be identified by the complainant.
2. The learned Sub-Divisional Judicial Magistrate took cognizance upon the said complaint and transferred the same case to the Court of the
learned Judicial Magistrate, 6th Court, Alipore, u/s 192(2) of the Code of Criminal Procedure for enquiry and trial. The transferee court examined
the complainant on solemn affirmation as also the four witnesses produced by him and perused certain documents produced by the complainant in
support of his case. On being satisfied therefrom that a prima facie case was made out under sections 448, 323, 324, 427, and 380 of the Indian
Penal Code he issued process against all the accused persons, including the petitioner. The learned Magistrate also considered the application filed
by the complainant for issuing search warrant and allowed the same, directing the Deputy Commissioner, South, to execute the search warrant and
further directing that if the properties were recovered the same may be kept in the custody of a third party until further orders. Aggrieved by the
order issuing search warrant, the petitioner moved this court and obtained the present Rule.
3. Mr. Dilip Kumar Dutt, the learned Advocate appearing for the petitioner, submitted that before issuing a search warrant u/s 93 of the Code of
Criminal Procedure it was incumbent on the part enquiry, trial or other proceeding would be served by a general search or inspection. According
to Mr. Dutt in absence of such satisfaction and recording reasons for the same the order of the learned Magistrate issuing search warrant was
illegal and without jurisdiction. In support of his contention Mr. Dutt relied upon the judgment of the Supreme Court in the case of (1) V.S. Kuttan
Pillai Vs. Ramakrishnan and Another, . Mr. Sankardas Banerjee, the learned Advocate appearing for the complainant opposite party, on the other
hand, contended that the materials on record clearly made out a case for issuing search warrant and no exception can be taken to the order passed
by the learned Magistrate issuing search warrant. Mr. Banerjee submitted that besides the complainant four witnesses were examined on his behalf
and their depositions prima facie go to indicate the commission of the offences by the accused and necessity of issuing the search warrant. At the
time of hearing of this Rule Mr. Banerjee placed before me medical reports showing that some of the witnesses of the complainant sustained
injuries in the incident which is the subject matter of the complainant.
4. Having gone through the materials on record and the impugned order of the learned Magistrate I find much substance in the contention of Mr.
Dutt. The order of the learned Magistrate for issuing the search warrant reads as follows: -
Seen the petition praying for S. warrant. Heard. Considered. The search warrant be issued in the name and designation of D. C. South for
executing the same with the directions that if the property is recovered the same may be kept in Jumma of a third party till further order. Inform.
There is no manner of doubt that the search warrant in the instant case was issued by the learned Magistrate u/s 93(1)(c) of the Code of Criminal
Procedure. Under the above clause a Court can issue search warrant if it considers that the purpose of any enquiry, trial or other proceeding under
the Code will be served by a general search or inspection. The order of the learned Magistrate does not record any such satisfaction or reasons
therefore. In the case of V. S. Kuttan Pillai (supra) while dealing with the provisions of section 93(1)(c) of the Code the Supreme Court observed
as follows:
Of course, issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a
mechanical way by a laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the
Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate
must be discernible in the order granting the search warrant.
In view of the above decision of the Supreme Court and in view of the laconic order passed in the instant case the impugned order has got to be
set aside. On such setting aside of the order it would have been appropriate for this Court to refer the matter back to the learned Magistrate to act
in accordance with law, particularly, the above judgment of the Supreme Court. But such course of action is not necessary in view of the
developments of this case.
5. After the Rule was issued by this Court on February 8, 1980 and the prayer for an interim stay of the impugned order was granted the
complainant-opposite party filed an application for revising this Court''s order dated 8.2.80 and the application was heard in presence of the
parties. Considering the nature of the dispute between the parties this Court directed that an inventory be made of all the properties lying in the
premises in question and requisitioned the services of one of the learned advocates of the Court. With the assistance of the learned advocates
appearing for the respective parties the learned advocate who was engaged to make the inventory, submitted an inventory report which was
accepted by this Court on 4.3.80 as none of the parties raised any objection to the acceptance of the same.
6. Mr. Banerjee, however, contended that besides, that of the main building of the premises No. 4, Ballygunge Park Road, an inventory is required
to be made of the properties lying in the outhouse of the aid premises also. Considering the averments made in the petition of complaint and the
application for search warrant I find no justification in issuing such directions. The search warrant was prayed for in respect of valuable properties
to believe that such properties would be kept in the outhouse necessitating issuance of a search warrant in respect thereof or making an inventory
of the properties lying therein.
7. In view of the above discussions, the impugned order issuing search warrant is hereby set aside and the Rule is made absolute.
Let the records be sent down early.
Rules made absolute.