SHAILENDRABHAI MOTILAL MEHTA Vs. KRISHNABEN VRAJLAL MEHTA

JUDGEMENT

(1.) The order dated 22-1-1997 passed by the 4th Joint Civil Judge (J.D.), Ahmedabad (Rural) is under challenge in this Revision. Through the impugned order the learned Joint Civil Judge (J.D.) issued a general search warrant under Sec. 93 of the Code of Criminal Procedure, which was directed against the respondent No. 1.

(2.) The respondent No. 1 has not appeared nor his Counsel has appeared though the list was revised four times. As such Shri V. H. Patel, learned Counsel for the revisionist and Shri M. A. Bukhari, learned A.P.P., representing the respondent No. 2, have been heard.

(3.) After hearing the learned Counsel for the revisionist and the learned A. P. P., I have no hesitation in my mind in observing that the learned Joint Civil Judge (J.D.) has committed grave illegality and patent jurisdictional error in passing the impugned order. In the impugned order, it is not mentioned whether general search warrant under Sec. 93 Cr.P.C. was issued for enabling the officer to decide any criminal case pending before him. Annexure 'A' is the application styled as Miscellaneous Criminal Application No. 10 of 1997 which was moved by the revisionist No. 1 before the Chief Judicial Magistrate, Ahmedabad (Rural). Even in this Application it was not mentioned whether this was an independent application or it was moved in some criminal inquiry, investigation or trial pending before the Chief Judicial Magistrate. It is also not clear from the impugned order as to how the disposal of this Miscellaneous Criminal Application was entrusted to the Joint Civil Judge (J.D.). However, perusal of Ground (B) in the Memo of Revision indicates that some proceeding under Sec. 125 Cr.P.C. was pending. Admittedly, the revisionist No. 1 is wife of the respondent No. 1 who is living separately on the allegation of cruelty, physical as well as mental, practiced by the respondent No. 1. It seems that because of this separate living on account of cruel treatment meted to the revisionist No. 1 by the respondent No. 1 that proceedings under Sec. 125 Cr.P.C. were initiated by the revisionist No. 1. The question is whether in such proceedings general search warrant could be issued by the delegate of the Chief Judicial Magistrate.