GANGADHARAN Vs. KOCHAPPI CHELLAPPAN

JUDGEMENT

(1.) Supported by an affidavit, the revision petitioner filed Crl. M.P. 3149/84 on 8-8-1984 before the Judicial Magistrate of the First Class, Neyyattinkara. Allegation in the petition was that the respondents (1st respondent herein and his son) committed theft of some items of furniture from his furniture shop and have hidden them at their residence. Petition was filed under S.94 of the Code of Criminal Procedure. Prayer was to issue an order for search. Date of commission of offence was alleged to be on 7-8-1984. On 8-8-1984 itself, the Magistrate ordered: "issue search warrant". On 16-8-84, pursuant to the search warrant, the Sub Inspector of Police, Balaramapuram conducted search in the residence of the 1st respondent. 13 items of furniture were taken to custody. A search list was prepared. Both the petitioner and the 1st respondent claimed custody. After taking some evidence, the Magistrate ordered entrustment of the articles to the petitioner. First respondent filed Crl. R.P. 125 of 1984 before the Sessions Court, Trivandrum against the order for search. By order dated 26-11-1984, the Sessions Judge allowed the revision and quashed the order. Hence this revision.

(2.) One of the contentions raised by the revision petitioner is that the first respondent, who, subsequent to the impugned order, claimed disposal of the properties in his favour, opposed the claim of the petitioner, and suffered an order against him regarding the disposal of the property, is not entitled to challenge the order for search without challenging the order for disposal of the properties. I think there is absolutely no force in this contention. The impugned order was challenged before the Sessions Judge even before the time allowed by law. The first respondent could have equally approached this Court for getting the order quashed under the inherent powers of this Court. For that purpose he could have availed of the time allowed by law. Participation in the enquiry for disposal of the properties and the claim made before the Magistrate that the properties may be given to him, have absolutely nothing to do with his right to challenge the order for search. Simply because he opposed the claim of the petitioner for custody and filed another petition claiming custody in his favour, there is no question of submitting himself to the order for search and thereby making himself ineligible to challenge the order. So also, a challenge of the subsequent proceedings is not a condition precedent to the exercise of the right to get the order for search quashed. There is no question of estoppel involved. When the order for search goes, all the proceedings taken consequent on such an order also must go. Therefore, there is no merit in the preliminary objection. The only question for consideration in this criminal revision petition is whether the order of the Sessions Judge quashing the impugned order needs interference or not.

(3.) It is true that pendency of any proceeding before the Magistrate is not a condition precedent to the issue of search warrant under S.94. It can be had as an independent proceeding. S.94 is intended as an emergency provision. The right under that section could be exercised even by Executive Magistrates. Upon mere information and after conducting such enquiry as he thinks fit, the Magistrate can issue search warrant if he thinks that such a course is necessary. The wording of the section itself is "upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property". Before issuing a search warrant on the strength of the information as distinguished from a complaint, the Magistrate should, if possible, examine the informant on oath to ascertain the bona fides of the information in order to satisfy himself that there are reasons to believe that the information is correct. If that is not possible, he should at least act with the due consciousness of the fact that he is taking upon himself the responsibility of considering the weight of the information he received. The order is one of a very serious nature. The Magistrate has to see that the conditions prescribed in the section are satisfied. For that purpose, if he thinks fit, he may have to hold an enquiry. There must be an information or allegation which the Magistrate has reason to believe that a particular place is used for the deposit or sale of the stolen property. One of the conditions preceding the exercise of the jurisdiction is that a place is used for the deposit or sale of the stolen property. In the affidavit, there was no such allegation.