Avadhesh Singh Toamr vs The State Of Madhya Pradesh Thr on 24 April, 2015

Madhya Pradesh High Court

Avadhesh Singh Toamr vs The State Of Madhya Pradesh Thr on 24 April, 2015
1 W.P. No.2352/15(PIL)

HIGH COURT OF MADHYA PRADESH

BENCH AT GWALIOR.

***

DIVISION BENCH HON.SHRI JUSTICE SHEEL NAGU & HON. SHRI JUSTICE B.D.RATHI ***
(Writ Petition No.2352/15) Avadhesh Singh Tomar & Another Vs.

State of Madhya Pradesh & Others

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Whether Reportable YES/NO Shri Anil Mishra, Advocate for the petitioners.

Shri R.P.Rathi, Government Advocate for respondents/State.

Order (Passed on 24 the Day of April, 2015) Per B.D.Rathi, J. -

This writ petition in the style of Pro Bono Publico has been filed by the petitioners, claiming
following reliefs: -

"1. This Hon'ble Court may kindly be not to seek Search Warrants under section 93 of
the Code of Criminal Procedure for the purposes of search and seizure for
investigation of registered offence under the P.C. Act 1988 & other various Acts.

2. The competent Special Courts notified under the P.C. Act, 1988, be also directed
not to issue Search warrants to the respondents for the routine course search and
seizure for the investigation of Offences registered under the P.C. Act & other various
Acts.

3. Further-more the respondents be directed to strictly comply with the provisions as

contained U/Sec 165 & Sec 166 of Code of Criminal procedure & other relevant
sections enacted for the purpose of Search & Seizure for investigation of Offences
registered under the P.C. Act 1988 & other various Acts.

4. That, any other suitable & proper relief that this Hon'ble Court deems fit for doing
justice in the matter may be granted."

(2) In support of the petition, it is submitted by Shri Mishra, learned counsel that in a routine
manner and frequently the police agency obtains a search warrant from the concerning court under
Section 93 of Cr.P.C. in the prescribed appended Formate No. 10, which is not permissible because

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specific provision under Section 165 of Cr.P.C. has been made by the legislation for the purposes of
making search but even then by shifting burden and also to avoid statutory duty, such a process is
being adopted. That apart, the power under section 93 of Cr.P.C. cannot be used by the court for
issuing search warrant when matter is under investigation because this power can be exercised at
the moment the orders are passed by the court competent under section 91 or 92 of Cr.P.C. but in no
way search warrant can be issued during the course of investigation. It is submitted by the counsel
that there is a difference between the inquiry and investigation. The word "investigation" has not
been included in inquiry. Attention of this court has been drawn on this point by referring the
judgments rendered by Hon. Supreme Court in the cases of State of West Bengal Vs. Sampat Lal
(AIR 1985 SC 195), H.N.Rishbud Vs. State of Delhi (AIR 1955 SC 196), Wazir Chand Vs. State of H.P.
(AIR 1954 SC 415), Hazari Lal Gupa Vs. Rameshwar Prasad (AIR 1972 SC 484), Niranjan Singh Vs.
State of U.P. (AIR 1957 SC 142), Manohar Lal Sharma Vs. Principal Secretary & Ors [2013 Legal
Eagle (SC) 10], M.C.Abraham & another Vs. State of Maharashtra & others (2003) 2 SCC 649 and
Manubhai Ratilal Patel through Ushaben Vs. State of Gujrat & others (2013) 1 SCC 314.

(3) It is further argued by the counsel that it is statutory obligation and duty of police authority to
investigate into crime and courts normally ought not to interfere and guide investigating agency as
to in what manner investigation has to proceed. But unfortunately simply on the request of the
Investigating Agency the trial courts concerned are issuing search warrants under section 93 of
Cr.P.C. without applying their minds. This practice should be stopped by issuing appropriate writ.
In support of his arguments, learned counsel has taken support from the ratio of decision in the case
of D.Venkatasubramaniam & others Vs. M.K. Mohan Krishnamchari & another (2009) 10 SCC 488.

(4) It is not disputed by the learned counsel that an alternative efficacious remedy is available in
such matters and in that eventuality the concerned person can approach the appropriate forum if
aggrieved from such kind of search warrant but even then writ jurisdiction can be resorted to in
order to avoid multiplicity of dispute. In support of such plea, learned counsel placed reliance on the
decision in the case of Jaipur Shahar Hindu Vikas Samiti Vs. State of Rajasthan & others (2014) 5
SCC

530. (5) Substantially and essentially, the grounds pressed in this petition are that off and on, during
the course of investigation of the registered offences, the respondents/ authority whom powers are
vested to make search under section 165 of Cr.P.C., seek indulgence of the court by resorting to
provisions under section 93 of Cr.P.C. Learned counsel for the petitioners contends that this action
on the part of the respondents shows gross negligence. The powers enumerated under sections 93
and 165 of Cr.P.C. are altogether different and same cannot be permitted to be used in a fancy
manner. One cannot be permitted to encroach upon the power of the Court. No canon of
construction permits such an erosion of power of the court to get issued search warrant.
Simultaneously, the courts should also be vigilant of the fact and refrain themselves from
proceeding at the behest of the Investigating Agency. Hence, it is prayed that appropriate directions
may be issued against police authorities to safeguard the interest of the public at large by way of
mandamus with observation that as far as possible search be made in accordance with the
provisions given under section 165 of Cr.P.C. instead of resorting to the provisions contemplated
under Section 93 of Cr.P.C. in getting search warrant frequently from the courts.

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(6) Learned Govt. Advocate for the State on the other hand, disputing and controverting the
allegations/contentions made in the PIL, submitted that the instant PIL lacks bona fide and rather it
is a proxy petition. Therefore, it is prayed that the petition may be dismissed.

(7) Having regard to the arguments, we have examined the entire case with relevant provisions of
law.

(8) Before adverting to the contentions raised by the learned counsel for the petitioner and the issue
generating this writ petition, the necessary provisions of Sections 93 and and 165 of Cr.P.C. are
quoted below:-

"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 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, it may issue a search- warrant; and the person
to whom such warrant is directed, may search or inspect in accordance therewith and the provisions
hereinafter contained.

(2) The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which
only the search or inspection shall extend; and the person charged with the execution of such
warrant shall then search or inspect only the place or part so specified.

(3) Nothing contained in this section shall authorise any Magistrate other than a District Magistrate
or Chief Judicial Magistrate to grant a warrant to search for a document, parcel or other thing in the
custody of the postal or telegraph authority.

165. Search by police officer.

(1) Whenever an officer in charge of a police station or a police officer making an investigation has
reasonable grounds for believing that anything necessary for the purposes of an investigation into
any offence which he is authorised to investigate may be found in any place with the limits of the
police station of which he is in charge, or to which he is attached, and that such thing cannot in his
opinion be otherwise obtained without undue delay, such officer may, after recording in writing the
grounds of his belief and specifying in such writing, so far as possible, the thing for which search is
to be made, search, or cause search to be made, for such thing in any place within the limits of such
station.

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(2) A police officer proceeding under sub- section (1), shall, if practicable, conduct the search in
person.

(3) If he is unable to conduct the search in person, and there is no other person competent to make
the search present at the time, he may, after recording in writing his reasons for so doing, require
any officer subordinate to him to make the search, and he shall deliver to such subordinate officer
an order in writing, specifying the place to be searched, and so far as possible, the thing for which
search is to be made; and such subordinate officer may thereupon search for such thing in such
place.

(4) The provisions of this Code as to search-

warrants and the general provisions as to searches contained in section 100 shall, so
far as may be, apply to a search made under this section.

(5) Copies of any record made under sub- section (1) or sub- section (3) shall
forthwith be sent to the nearest Magistrate empowered to take cognizance of the
offence, and the owner or occupier of the place searched shall, on application, be
furnished, free of cost, with a copy of the same by the Magistrate.

(9) To consider whether present petition is maintainable or not, following two question are cropped
up for consideration:-

(i) Whether by invoking jurisdiction under section 93(1)(c) of Cr.P.C. search warrant
can be issued by the court competent on the request of the police
authority/Investigating Agency ?.

(ii) Whether by entertaining this petition, writ of mandamus can be issued ?.

(10) It is not a question before this court to consider whether trial includes "investigation" or not.
Certainly, trial is something different from investigation. In this context, we need not to emphasize
or elaborate further word "inquiry" or "trial". It is settled law that both are different procedure as
defined under the Code of Criminal Procedure. On bare perusal of section 93 Cr.P.C., it indicates
that provisions given under section 93(1)(c) is something different from sections 93(1)(a) and
93(1)(b). The provisions given in sub-clause (c) provides 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, in that event search warrant can be issued. This point has already been
considered by the Calcutta High Court in the case of Hasimara Industries Ltd. & another Vs. The
Company Law Board & others (1976 Cri.L.J. 50) and held as under:-

"An investigation is a proceeding under the Code within the meaning of the third
clause of Section 96(1) (Old Code = Sec. 93(1) of New Code). From this point of view
a general search warrant issued by a Magistrate in aid of an investigation under the
code is valid."

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(11) In the case of V.S.Kuttan Pillai Vs. Ramakrishnan & another (AIR 1980 SC 185) while dealing
with the same situation arising from the case observed as under:-

"14. Section 93(1) (c) of the new Code 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 can be seized irrespective of the fact
that the documents may contain some statement 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 s. 93(1) (c) will not have even the remotest tendency to compel the accused to
incriminate himself. He is expected to do nothing. He is not required to participate in
the search. He may remain a passive spectator. He may even remain absent. Search
can be conducted under the authority of such warrant in the presence of the accused.
Merely because he is occupying the premises which is to be searched under the
authority of the search warrant it cannot even remotely be said that by such search
and consequent seizure of documents including the documents which may contain
statements attributable to the personal knowledge of the accused and which may
have tendency to incriminate him, would violate the constitutional guarantee against
self-

incrimination because he is not compelled to do anything. A passive submission to search cannot be

styled as a compulsion on the accused to submit to search and if anything is recovered during search
which may provide incriminating evidence against the accused it cannot be styled as compelled
testimony. This is too obvious to need any precedent in support. The immunity against self-
crimination extends to any incriminating evidence which the accused may be compelled to give. It
does not extend to cover such situation as where evidence which may have tendency to incriminate
the accused is being collected without in any manner compelling him or asking him to be a party to
the collection of the evidence. Search of the premises occupied by the accused without the accused
being compelled to be a party to such search would not be violative of the constitutional guarantee
enshrined in Article 20(3).

15. It was, however, urged that s. 93(1) (c) must be read in the context of s. 93(1) (b) 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 s. 93(1) (c) will have to be ruled out because in such
a situation s. 93(1)(a) alone would be attracted. Section 93(1)(b) 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. Section 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

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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 s. 93(1) (c) by importing into it some of the
requirements of s. 93(1)(b). No canon of construction would permit such an 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 things 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 s. 93(1)(c)."

(12) So as per the proposition of law laid down by Hon. Supreme Court in the case of V.S.Kuttan
Pillai (supra) it becomes crystal clear that general search warrant may be issued by the court
competent by invoking powers under section 93(1)(c) of Cr.P.C. There is no rider or exception that
prior to take action as per provisions given under section 165 of Cr.P.C., search warrant can not be
issued by the competent court by invoking powers under section 93(1)(c) of Cr.P.C. Therefore, the
Investigating Agency may take search as per provisions under section 165 of Cr.P.C. or if required
may approach the competent court under section 93(1)(c) of Cr.P.C., as the case may be. Not only
this, the decision in the case of V.S.Kuttan Pillai (supra), also signifies that the provisions of Section
93(1)(c) is not hit by Article 20 (a) of the Constitution of India, relevant paras of which are quoted
above.

(13) In the case of M.P. Sharma and others Vs. Satish Chandra, District Magistrate, Delhi & others
(AIR 1954 SC 300), it was held by the Apex Court that Article 19(1)(f) of the Constitution of India
declares the right of all citizens to acquire, hold and dispose of property subject to the operation of
any existing or future law in so far as it imposes reasonable restrictions, on the exercise of any of the
rights conferred thereby in the interests of general public. In the same way it is further held as
under:-

"2.................But, a search by itself is not a restriction on the right to hold and enjoy
property. No doubt a seizure and carrying away is a restriction of the possession and
enjoyment of the property seized. This, however, is only temporary and for the
limited purpose of investigation. A search and seizure is, therefore, only a temporary
interference with the right to hold the premises searched and the articles seized.
Statutory regulation in this behalf is necessary and reasonable restriction cannot per
se be considered to be unconstitutional. The damage, if any caused by such
temporary interference if found to be in excess of legal authority is a matter for
redress in other proceedings. We are unable to see how any question of violation. of
Art. 19(1) (f) is involved in this case in respect of the warrants in question which
purport to be , under the first alternative of S. 96(1) of the Criminal P.C."

(14) After thus examining the matter to a rigorous test on the touchstone of the principles of law laid
down by the Hon'ble Apex Court, it can be safely held that there is no violation of Article 19(1) or
Article 20(3) of the Constitution of India in issuing search warrant by the courts.

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(15) Now, while considering to question No.(ii), we find that the provision of section 93(1)(c) of
Cr.P.C. is discretionary in nature and being so, no writ will lie where duty is of discretionary nature.
Mandamus is a judicial remedy which is in the form of an order from superior court to any
government, court, corporation or public authority to do or to forbear from doing some specific act
which that body is obliged under law to do or refrain from doing, as the case may be, and which is in
the nature of a public duty and in certain cases of a statutory duty. No one can ask for a mandamus
without a legal right. There must be a judicially enforceable as well as legally protected right before
one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only
when he is denied a legal right by someone who has a legal duty to do something and abstains from
doing it. Moreover, the special remedy provided in Article 226 is not intended to supersede
completely the modes of obtaining relief by a action in a civil court or to deny defences legitimately
open in such actions. The power to give relief upon Article 226 is discretionary and it is specially
true in the case of power to issue the writ of mandamus.

(16) In the case at hand, power conferred on the court under section 93(1)(c) of Cr.P.C. is purely
discretionary in nature and therefore it is left open to the aggrieved person concerned to claim
damage, if any caused by such temporary interference if found to be in excess of legal authority by
way of other proceedings for redressal of his grievance. Apart that such kind of general direction in
the nature of writ of mandamus cannot be issued when the law permits the competent court to issue
search warrant under the provisions as envisaged in section 93(1)(c) of Cr.P.C. and when further
there is no bar created for invoking such powers. We further make it clear that issuing of search
warrant by invoking powers under section 93(1)(c) of Cr.P.C. does not tantamount to interference
with investigation or issue of any particular direction to investigate the matter in a particular
manner. To sum up, issuance of warrant under section 93(1)(c) of Cr.P.C. does not lead to
interference with the investigation and therefore also no writ can be issued.

(17) Resultantly, we are of the considered view that this petition is not maintainable because no writ
of any kind can be issued by this court for the reasons mentioned above. Petition is therefore
dismissed.

(Sheel Nagu) (B.D.Rathi)

Judge Judge
(Bu)

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