Chattisgarh High Court
Firoz Siddiqui vs The State Of Chhattisgarh 15 ... on 9 December, 2019
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Misc. Petition No.2402 of 2019
Order reserved on: 15-11-2019
Order delivered on: 9-12-2019
Firoz Siddiqui, S/o Kamruddin, Aged about 52 years, R/o 4th Floor, Shri
Ram Heritage, Katora Talab, Raipur, P.S. Civil Line, Raipur, District Raipur
(C.G.)
(In jail)
---- Petitioner
Versus
The State of Chhattisgarh, through S.H.O., Police Station Civil Line,
Raipur, District Raipur (C.G.)
---- Respondent
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For Petitioner: Mr. Maneesh Sharma, Advocate.
For Respondent / State:
Mr. Mateen Siddiqui, Deputy Advocate General.
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Hon'ble Shri Justice Sanjay K. Agrawal C.A.V. Order
1. The short question which emanates for consideration in this petition filed under Section 482 of the CrPC is, whether the trial Magistrate is justified in issuing general warrant for search of locker held by the petitioner in exercise of power conferred under Section 93(1)(c) of the CrPC? The aforesaid question arises in this case on the following factual backdrop: -
2. The petitioner was arrested by the jurisdictional police on 31-7-2019 in connection with Crime No.449/2019 registered at Police Station Civil Lines, Raipur, as he is alleged to have committed the offence punishable under Sections 384, 120B & 201 read with Section 34 of the IPC and during the pendency of investigation, on 18-9-2019, an 2 application for issuance of search warrant of the petitioner's locker No.G 4/28 at IDBI Bank, Branch Aishwarya Residency, Telibandha, Raipur, was filed by the jurisdictional police before the Chief Judicial Magistrate, Raipur stating that for collection of evidence, search of the petitioner's locker is necessary. Thereafter, charge-sheet was filed before the jurisdictional criminal court on 24-9-2019 for the aforesaid offences against the petitioner and thereafter, the learned Chief Judicial Magistrate on 30-9-2019 considered and granted that application finding that for collection of evidence in connection with the crime, issuance of warrant of search for his locker appears to be just and proper. The order granting general warrant for search of locker was assailed by the petitioner by way of revision, but he remained unsuccessful leading to filing of the instant petition under Section 482 of the CrPC.
3. Mr. Maneesh Sharma, learned counsel appearing for the petitioner, would submit that the learned Chief Judicial Magistrate is absolutely unjustified in granting the application filed under Section 93(1) of the CrPC and would also submit that for investigation of an offence, that too for collection of evidence, no search warrant can be issued under Section 93(1)(c) of the CrPC. He would further submit that Section 93(1)(c) of the CrPC requires the Court to consider that for the purposes of any inquiry, trial or other proceeding under the Code, general search is required, then only search warrant can be issued. In the instant case, the learned trial Magistrate without application of mind, on mere asking by the police station that for collection of evidence, search warrant be issued, issued general warrant for search of locker which runs contrary to the provisions 3 contained in Section 93(1)(c) of the CrPC, as it smacks complete non-application of mind and in aid of investigation for which no warrant under Section 93(1)(c) of the CrPC can be issued, as such, the order passed by the trial Magistrate and by the revisional Court perpetuating the illegality, deserve to be set-aside. He relied upon a judgment of the Supreme Court in the matter of V.S. Kuttan Pillai v. Ramakrishnan and another 1 to support his contention.
4. Mr. Mateen Siddiqui, learned Deputy Advocate General appearing for the State / respondent, would submit that the petitioner is standing trial for the aforesaid offences, particularly Section 384 of the IPC, as he has extorted more than ₹ 1,90,00,000/- (Rupees one crore ninety lakhs only) from the complainant and therefore to collect evidence of such an offence committed by the petitioner / accused, search warrant has been obtained by the jurisdictional police which is strictly in accordance with Section 93(1)(c) of the CrPC. He would further submit that investigation is a proceeding under the Code within the meaning of Section 93(1)(c) of the CrPC and therefore general search warrant issued by the Magistrate in aid of investigation under the Code is valid. He placed reliance upon a decision of the M.P. High Court in the matter of Avadhesh Singh Tomar and others v. State of Madhya Pradesh and others 2 to buttress his submission.
5. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
6. In order to consider the plea raised at the Bar and to answer the 1 (1980) 1 SCC 264 2 2015(3) MPLJ 75 4 question, it would be appropriate to notice Section 93(1) of the CrPC which provides as under: -
"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, 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."
7. It would be appropriate to mention that Section 93(1)(c) of the CrPC in particular is the pari materia provision to Section 96(1), clause
(c), of the Code of Criminal Procedure, 1898, now repealed.
8. A careful perusal of Section 93(1)(c) of the CrPC would show that the Legislature has consciously used the words, "inquiry, trial or other proceeding", but has omitted the word "investigation". The word "inquiry" has been defined in Section 2(g) of the CrPC by stating that "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. Likewise, the word "investigation" has been defined in Section 2(h) of the CrPC stating that "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
9. Inquiry is by Magistrate, whereas investigation is by police officer or 5 by any person other than Magistrate or Court. The object of investigation is collection of evidence, but that of an inquiry is determination of truth or falsehood of certain allegation in order to the further action.
10. The investigation is neither an enquiry nor trial. It is within the executive domain of the police to investigate and is independent of any control by the Magistrate. (See Manubhai Ratil Patel Tr. F Ushaben v. State of Gujarat 3.)
11. Investigation starts after the police officer receives information in regard to an offence. It consists generally of: (i) Proceeding to the spot; (ii) ascertainment of the facts and the circumstances of the Case; (iii) discovery and arrest of the suspected offender; (iv) collection of the evidence relating to the commission of the offence which may consists of: (a) the examination of various persons (including the accused) and recording their statements, if the I.O. thinks fit; (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the time of the trial; and (v) formation of opinion as to whether it is a fit Case for the accused to be sent up for the trial and, if so, taking steps for same for the filing of charge-sheet. (See H.N. Rishbud v. State 4.)
12. A trial is a judicial proceeding which ends in conviction or acquittal. (See Tuneswar v. State of Bihar 5.)
13. The nature of power being exercised by the Magistrate while issuing the search warrant under Section 93 of the CrPC has been held to be judicial by the Supreme Court (Constitution Bench) in the 3 2013 Cr LJ 160 (165) (SC) 4 AIR 1955 SC 196 5 1978 Cr LJ 1080 (Pat) 6 matter of M.P. Sharma and others v. Satish Chandra, District Magistrate, Delhi and others 6 by holding that issue of a search warrant is normally the judicial function of the Magistrate. When such judicial function is interposed between the individual and the officer's authority for search, no circumvention thereby of the fundamental right is to be assumed.
14. In V.S. Kuttan Pillai (supra) wherein the provisions of Section 93(1)(c) of the CrPC were dealt with, it was held by Their Lordships of the Supreme Court that Section 93(1)(c) of the CrPC comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. It was also held that issuance of 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. It was emphasised by Their Lordships that issue of a search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed the discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting search warrant.
15. In the matter of K. Hoshide and another v. Emperor 7, the Division Bench of the Calcutta High Court has held that an inquiry relates to proceeding held by a Court or a Magistrate while an investigation relates to the steps taken by a police officer or a person other than a Magistrate. Their Lordships also held that the third clause of 6 AIR 1954 SC 300 7 AIR 1940 Calcutta 97 7 Section 96(1) of the Code of Criminal Procedure, 1898, which is pari materia to Section 93(1)(c) of the Code of Criminal Procedure, 1973, has nothing whatsoever to do with an investigation. It does not provide for any step to be taken in aid of an investigation but it provides for something which the Magistrate may do for the purpose of serving an inquiry, trial or other proceeding under the Code. It was further held that clause 3 of Section 96(1) of the old Code does not empower the issue of the warrant to help the investigation by the police and the customs authorities. It was also held that a search warrant is not to be issued automatically or for the mere asking. It can only be issued when the Court considers that the purpose of an inquiry would be served. The Magistrate must apply his judicial mind to the question and must satisfy himself that the issue of the warrant is necessary. A search warrant should not be issued as a matter of course on the bare statement of a police officer that a search was necessary.
16. In the matter of Kalinga Tubes Ltd. and others v. D. Suri and another 8, a Division Bench of the Orissa High Court held that the word "investigation" is absent in clause (3) of sub-section (1) of Section 96 of the Code of Criminal Procedure, 1898, therefore, the requirement of a higher and stricter standard for general searches is necessary and it was further held that what is necessary in such cases is that the Magistrate should be reasonably satisfied that the search is likely to be a link in the chain which in the normal course will lead to an inquiry under the CrPC, if the expected material is found on the search and that he should also be satisfied that there 8 AIR 1953 Orissa 153 8 is reasonable ground for the expectation.
17. In the matter of Shri Melicio Fernandas v. Shri Mohan Nair and another 9, the Full Bench of the Bombay High Court (Goa) has held that issue of search warrant is purely a discretionary power and the issue of search warrant is normally the judicial function of the Magistrate. The words "reason to believe" coupled with other words contemplate an objective determination based on intelligent care and deliberation involving judicial review as distinguished from a purely subjective consideration. It was further held that this function being judicial, it necessarily follows that the Magistrate has to apply his mind judicially.
18. The Punjab and Haryana High Court in the matter of Harbans Singh v. The State of Punjab and another 10 while dealing with Section 96(1) of the old Code held that the Court is required to record its reasons which should indicate that it has applied its mind before passing the order directing the issue of search warrant and for that it must see that there is sufficient material before it which justifies the drastic action which it is being invited to take. The Punjab and Haryana High Court finding that the Chief Judicial Magistrate issued search warrant on the basis of the first information report of the case and on the request made by the police, without giving any reason as to why the accused will not produce the documents and the things required, quashed the general search warrant issued against the petitioner therein.
19. Likewise, in the matter of Bimal Kanti Ghosh v. M. 9 AIR 1966 Goa, Daman and Diu 23 10 1978 Cri. L.J. 1591 9 Chandrasekhar Rao 11, the Orissa High Court has held that the Court before issuing a search warrant must have reasons to believe that the person to whom summons under Section 91 of the CrPC has been issued will not or would not produce document. The expression "reasons to believe" would mean that there must be some justifiable grounds for the Court to form that opinion and mere suspicion cannot take the place of justification to have the opinion.
20. In the matter of Re: Mahomed Tahir 12, the Bombay High Court has held that for a search warrant to be issued under the Code of Criminal Procedure it is not necessary that the proceedings should be actually pending before the Magistrate at the time he issues the warrant. A warrant may be issued for the purpose of an inquiry about to be made, provided it is an inquiry under the Code, but not for the purpose of an inquiry either being made or about to be made otherwise than under the Code.
21. Clause (c) of sub-section (1) of Section 93 of the CrPC employs the word "consider" which means to look at closely and carefully; to think or deliberate on; to take into account. (See Oriental Bank of Commerce v. Sunder Lal Jain 13.) The dictionary meaning of the word "consider" is, "to think over", "to regard as" or "deem to be". (See LIC v. A. Masilamani 14.) Likewise, in the matter of Southern Railway v. T.R. Chellappan 15, the term "consider" has been held to be postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person. The term 11 1986 Cri. L.J. 689 12 AIR 1934 Bom 104 13 (2008) 2 SCC 280 14 (2013) 6 SCC 530 15 (1976) 3 SCC 190, 201 10 "consider" means to think over; it connotes that there should be active application of mind. In other words, the term "consider" postulates consideration of all the relevant aspects of the matter. (See Bhikhubhai Vithlabhai Patel v. State of Gujarat 16.) The dictionary meaning of the word "consider" is "to review attentively, to survey, examine, inspect (arch.), to look attentively, to contemplate mentally, to think over, mediate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect" (vide Shorter oxford Dictionary). According to Words and Phrases - Permanent Edition Vol. 8-A "to consider" means to think with care. It is also mentioned that to "consider" is to fix the mind upon with a view to careful examination; to ponder; study; mediate upon, think or reflect with care. The words "considers it necessary" postulate that the authority concerned has thought over the matter deliberately and with care and it has found necessary as a result of such thinking to pass the order. (See Barium Chemicals Ltd. v. A.J Rana, Paragraph 14.)17
22. Reverting to the facts of the case in light of the principles of law laid down in the aforesaid judgments flowing from Section 93(1)(c) of the CrPC which is a pari materia provision to Section 96(1) of the old Code, 1898, it is quite vivid that the petitioner was arrested on 31-7-2019 in connection with Crime No.449/2019 registered at Police Station Civil Lines, Raipur, for the offence punishable under Sections 384, 120B & 201 read with Section 34 of the IPC, and during the continuance of investigation, an application for issuance of search warrant of the petitioner's locker No.G 4/28 at IDBI Bank, 16 (2008) 4 SCC 144 17 (1972) 1 SCC 240 11 Branch Aishwarya Residency, Telibandha, Raipur, was filed by the Station House Officer, Police Station Civil Lines, Raipur, before the Chief Judicial Magistrate, Raipur, on 18-9-2019 which states as under: -
थथानथा प्रभथाररी थथानथा ससिवविल लथाईन रथायपपुर क./थथानथा/ससि.लथा./रथाय/जअ-2326/19, वदिनथानांक 18.09.19 प्रवत, मथाननरीय मपुख्य न्यथावयक मसजस्टट ट्रे ट, रथायपपुर ।
वविषयय-थथानट्रे कट्रे अप.कनां. 449/19, धथारथा 384, 120 बरी, 201, 34 भथादिववि कट्रे आररोपरी वफिररोज ससिदरीककी कट्रे आईडरीबरीआई बबक शथाखथा ऐश्वियथार्या रट्रेसिरीडडसिरी तट्रेलरीबथानांधथा रथायपपुर मड सिनांचथासलत ललॉकर ककी तलथाशरी हट्रेतपु अनपुमवत प्रदिथाय करनट्रे बथाबतत् ।
महरोदिय,
---000---
वनविट्रेदिन हहै वक थथानथा कट्रे अप.कनां. 449/19, धथारथा 384, 120 बरी, 201, 34 भथादिववि मड आररोपरी वफिररोज ससिदरीककी वपतथा कमथालपुदरीन ससिदरीककी उम्र 52 विषर्या सिथा.
ए-403, 404 चचौथथा तल शरीरथाम हट्रेररीटट्रेज कटरोरथा तथालथाब थथानथा ससिवविल लथाईन रथायपपुर करो वदिनथानांक 30.07.2019 करो वगिरफ्तथार कर न्यथावयक ररमथाण्ड पर भट्रेजथा गियथा हहै । जरो वितर्या मथान मड कट्रेन्दरीय जट्रेल रथायपपुर मड वनरूद हहै । प्रकरण कट्रे आररोपरी वफिररोज ससिदरीककी कथा आईडरीबरीआई बबक शथाखथा, ऐश्वियथार्या रट्रेसिरीडडसिरी, तट्रेलरीबथानांधथा, रथायपपुर मड खथातथा एविनां ललॉकर सिनांचथासलत हरोनट्रे ककी जथानकथाररी प्रथाप्त हरोनट्रे पर शथाखथा प्रबनांधक सिट्रे जथानकथाररी प्रथाप्त वकयथा गियथा । शथाखथा प्रबनांधक कट्रे दथारथा जथानकथाररी वदियथा गियथा हहै, वक आररोपरी वफिररोज ससिदरीककी कथा उनकट्रे बबक ककी शथाखथा मड खथातथा एविनां ललॉकर सिनांचथासलत हहै । वफिररोज ससिदरीककी कथा ललॉकर ननां. जरी 4/28 हहै । अपरथाध मड सिथाक्ष्य कट्रे सिनांकलन मड उक्त ललॉकर ककी तलथाशरी सलयथा जथानथा आविश्यक हहै ।
अतय तलथाशरी हट्रेतपु विथारनांट जथाररी करनट्रे ककी ककपथा करड । सिथाथ हरी अधरीक्षक, कट्रेन्दरीय जट्रेल, रथायपपुर करो आररोपरी वफिररोज ससिदरीककी करो वनयत तथाररीख सिमय करो आईडरीबरीआई बबक ककी तट्रेलरीबथानांधथा शथाखथा मड उपसस्थत करथानट्रे हट्रेतपु वनदिरवशत करनट्रे कथा कष्ट करड ।
सिनांलगय- बबक सिट्रे प्रथाप्त जथानकथाररी एविनां कट्रेश डथायररी ।
सिहरी/-
थथानथा प्रभथाररी थथानथा ससिवविल लथाईन रथायपपुर 12
23. Thereafter, on 24-9-2019, final report / charge-sheet was submitted by the jurisdictional police for the aforesaid offence against the petitioner and thereafter, the application submitted by the State / prosecution came up for hearing before the jurisdictional criminal Court on 30-9-2019, that application was considered by the learned Chief Judicial Magistrate and the same was granted by order dated 30-9-2019. Operative portion of the order states as under: -
आविट्रेदिन पर सिपुनथा गियथा ।
प्रकरण कथा अविलरोकन वकयथा गियथा ।
प्रकरण कट्रे अविलरोकन सिट्रे दिवशर्या त हहै वक थथानथा ससिवविल लथाईन रथायपपुर दथारथा अवभयपुक्त वफिररोज ससिदरीककी कट्रे वविरूद धथारथा-384 भथा.दिनां.सिनां. कट्रे तहत अपरथाध पनांजरीबद वकयथा गियथा हहै । वविविचट्रेनथा कम मड अन्य अवभयपुक्त रईसि ससिदरीककी एविनां अवभयपुक्त मरोहन यथादिवि उफिर्या मरोननू यथादिवि करो भरी अपरथाध मड सिनांसलप्ततथा दिवशर्या त हरोनट्रे सिट्रे वगिरफ्तथार वकयथा गियथा हहै । प्रकरण मड अन्य अवभयपुक्त फिकरू कट्रे फिरथार हरोनट्रे ककी दिशथा मड उक्त अवभयपुक्त कट्रे वमलनट्रे पर पकथक सिट्रे धथारथा-173(8) दिनां.प्र.सिनां. कट्रे तहत कथायर्या विथाहरी ककी जथाकर पनूरक अवभयरोगि पत्र पट्रेश करनथा लट्रेख करतट्रे हह ए तरीन अवभयपुक्तगिण कट्रे वविरूद भथारतरीय दिण्ड सिनांवहतथा ककी धथारथा-384, 201, 120(बरी), 34 कट्रे तहतत् अवभयरोगि पत्र वदिनथानांक-25.09.2019 करो प्रस्तपुत वकयथा गियथा हहै ।
अवभयरोगि पत्र प्रस्तपुत करनट्रे कट्रे पनूविर्या ररमथाण्ड स्तर पर वदिनथानांक-20.09.2019 करो थथानथा ससिवविल लथाईन रथायपपुर दथारथा यह आविट्रेदिन पत्र प्रस्तपुत कर अवभयपुक्त वफिररोज ससिदरीककी कथा बबक खथातथा एविनां ललॉकर आई.डरी.बरी.आई. बबक, शथाखथा ऐश्वियथार्या रट्रेसिरीडडसिरी तट्रेलरीबथानांध, रथायपपुर मड हरोनथा व्यक्त वकयथा गियथा हहै । अवभयपुक्त वफिररोज ससिदरीककी कथा उक्त बबक मड ललॉकर कमथानांक जरी 4/28 हरोनथा भरी व्यक्त वकयथा गियथा हहै । अपरथाध मड सिथाक्ष्य कट्रे सिनांकलन कट्रे सलए उक्त ललॉकर ककी तलथाशरी लट्रेनट्रे कट्रे सिनांबनांध मड तलथाशरी विथारण्ट जथाररी करनट्रे एविनां अवभयपुक्त वफिररोज ससिदरीककी करो आई.डरी.बरी.आई. बबक ककी तट्रेलरीबथानांधथा शथाखथा मड उपसस्थत करथानट्रे हट्रेतपु यह आविट्रेदिन पत्र प्रस्तपुत वकयथा गियथा हहै । थथानथा - ससिवविल लथाईन रथायपपुर दथारथा यह आविट्रेदिन पत्र - ररमथाण्ड स्तर पर प्रस्तपुत वकयथा गियथा हहै , सजसिकथा वविररोध करतट्रे हह ए अवभयपुकत वफिररोज ससिदरीककी कट्रे असधविक्तथा दथारथा जविथाब पट्रेश वकयथा गियथा हहै । अपरथाध कट्रे सिथाक्ष्य कट्रे सिनांकलन हट्रेतपु अवभयपुक्त वफिररोज ससिदरीककी कट्रे आई.डरी.बरी.आई. बबक शथाखथा तट्रेलरीबथानांधथा कट्रे ललॉकर कमथानांक 4/28 ककी तलथाशरी विथारण्ट जथाररी वकयथा जथानथा उवचत प्रकट हरोतथा हहै । फिलस्विरूप थथानथा ससिवविल लथाईन दथारथा प्रस्तपुत आविट्रेदिन पत्र वविचथार विथादि वनम्न शतर नां कट्रे अधरीन स्विरीकथार वकयथा जथातथा हहैय-
1- अवभयपुक्त वफिररोज ससिदरीककी कट्रे आई.डरी.बरी.आई. बबक शथाखथा तट्रेलरीबथानांधथा कट्रे ललॉकर कमथानांक जरी 4/28 ककी तलथाशरी कट्रे दिचौरथान उसिकथा विरीवडयरोगथाफिकी करथायथा जथायट्रेगिथा ।
132- ललॉकर ककी तलथाशरी कट्रे सिनांबनांध मड गिविथाहहों कट्रे सिमक्ष पनांचनथामथा तहैयथार वकयथा जथायट्रेगिथा ।
3. ललॉकर मड उपलब्ध सिथामथागरी मड सिट्रे मथात्र इसि अपरथाध सिट्रे सिनांबनांसधत सिथाक्ष्य मड उपयरोगि मड लथायट्रे जथानट्रे विथालट्रे विस्तपु/सिथामथागरी करो जप्त वकयथा जथाकर शट्रेष सिथामथागरी करो यथथावित उसिरी ललॉकर मड रखथा जथायट्रेगिथा ।
तद्नपुसिथार अवभयपुक्त वफिररोज ससिदरीककी कट्रे आई.डरी.बरी.आई. बबक शथाखथा तट्रेलरीबथानांधथा कट्रे ललॉकर कमथानांक जरी 4/28 ककी तलथाशरी सलयट्रे जथानट्रे हट्रेतपु तलथाशरी विथारण्ट जथाररी वकयथा जथाविट्रे । सिथाथ हरी, अवभयपुक्त वफिररोज ससिदरीककी करो आई.डरी.बरी.आई. बबक शथाखथा तट्रेलरीबथानांधथा कट्रे ललॉकर कमथानांक जरी 4/28 ककी तलथाशरी सलयट्रे हट्रेतपु अवभयपुक्त वफिररोज ससिदरीककी करो कट्रेन्दरीय जट्रेल रथायपपुर सिट्रे आई.डरी.बरी.आई. बबक शथाखथा तट्रेलरीबथानांधथा रथायपपुर मड जट्रेल वनयमथाविलरी अनपुसिथार सिमपुवचत सिपुरक्षथा सिवहत उपसस्थत रखनट्रे हट्रेतपु अधरीक्षक कट्रेन्दरीय जट्रेल रथायपपुर करो जथापन प्रट्रेवषत वकयथा जथाविट्रे ।
24. A careful perusal of the above-stated reproduced application and the order passed on that application would show that the jurisdictional police during the course of investigation sought general warrant for searching the locker of the petitioner for collection of evidence of the alleged offences which the learned Chief Judicial Magistrate accepted as it is by holding that for collection of evidence of the offence or crime, issuance of search- warrant appears to be appropriate. It appears that on mere asking by the jurisdictional police, the search-warrant has been issued without any material or justification for issuance of such a warrant for search. In V.S. Kuttan Pillai (supra), Their Lordships of the Supreme Court have clearly held that 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. On the basis of mere suspicion or allegation raised by the respondent / State Police, warrant under Section 93(1)(c) of the CrPC cannot be issued. The learned Chief Judicial Magistrate ought to have recorded some justiciable reasons to form such an opinion for issuance of search-warrant of locker held by the 14 petitioner. The police in their application have not even expressed suspicion in the application to have the search-warrant issued against the locker of the petitioner except saying that for collection of evidence of the offence, issuance of search-warrant is necessary or not even produced any material for filing such an application which the Magistrate has accepted and which smacks clear non- application of mind.
25. In the light of the above-stated analysis, if the facts of the present case and the impugned order are examined, it is quite vivid that the order of the learned Magistrate directing issuance of general warrant of the search of locker of the petitioner, smacks complete non-application of mind; it has been passed only on the basis of the application made by the jurisdictional police to collect evidence. It is bereft of any reason demonstrating as to why issuance of search- warrant of the petitioner's locker is necessary. The learned Magistrate has failed to apply its mind while directing for drastic action of search of the petitioner's locker in an application made during the course of investigation.
26. As a fallout and consequence of the above-stated discussion, the order dated 30-9-2019 passed by the learned Chief Judicial Magistrate, Raipur, confirmed by the revisional Court, is hereby set- aside. However, this will not bar the respondent/State to make a duly constituted application for issuance of search-warrant against the petitioner, in accordance with law.
27. The petition is allowed to the extent indicated herein-above.
Sd/-
(Sanjay K. Agrawal) Judge Soma