BRIJENDRA NATH AGARWAL Vs. PHAPMED PRIVATE LIMITED

JUDGEMENT

(1.) The applicant is being prosecuted on a private complaint of the opposite-party under Section 409 Cr. P. C. filed on 25-6-1979. It would appear that in pursuance of a search and seizure warrant issued by the Magis trate concerned, medicines, account books, vouchers etc. have been seized from the premises of Brijendra and Brijendra. The order is Annexure III and the search warrant, also direct ing seizure is Annexure IV. The order was passed on an application preferred by the opposite-party, Annexure 1, supported by an affidavit Annexure II. In the application for search and seizure, it was stated that the belongings are in possession of the accused and prayer for his search and seizure from his place was made. The warrant issued by the Magistrate is, however, not for any personal search or search of the premises of the accus ed person, but it purports to be a warrant for general search. The first ground urged is that there is a violation of Article 20 of the Constitution as any accused person cannot be called upon to furnish any incriminating evidence against him. Reliance has been placed upon the case of State of Gujarat v Shyam Lal Mohan Lal Choksi A. I. R. 1965 S. C. 1251, wherein it was held that no search warrant could be issued to search for docu ments known to be in possession of the accused, but a general search or inspection can still be ordered. The learned counsel for the opposite side relied upon the case of V. S. Rattan Filial v. Ramakrishnan and another A. I. R. 1980 S. C. 185. In that case the following observations have been made: "it was, however, urged that Section 93 (1) (c) must be read in the context of Section 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 Sec tion 93 (1) (c) will have to be ruled out because in such a situation Sec tion 93 (1) (a) alone would be attrac ted. Section 93 (1) (b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be reco vered from a certain place but it is not known to the Court whether that document or thing is in pos session of any particular person. Under clause (b) there is a definite allegation to recover certain docu ment or thing from a certain specific place but the Court is un aware 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 place where the documents may be found and that a general search is necessary. One cannot, there fore, cut down the power of the Court under Section 93 (1) (c) by importing into it some of the requirements of Section 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 compre hends 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 neces sary or desirable for the purpose of an investigation, inquiry, trial or other proceeding under the Code. The High Court accordingly sus tained the general search warrant in this case under Section 93 (1) (c)". I have considered the implication. It may be observed that in paragraph Nos. 10 and 11, read together, it was observed that the Court was proceed ing on a certain assumption in view of the decision in Shyamlal Mohanlal's case though there are conflicting ob servations in different pronounce ments and a search under Section 93 (1)Cr. P. C. would not be issued where the summons could not be issued to a person accused of an offence, calling upon him to produce documents or things considered neces sary. It would thus appear that in no way there has been any dissent from the earlier pronouncements so far as this particular aspect is concern ed and the aforesaid pronouncement lays down that while otherwise, general search warrant can be issued as contemplated under Section 93 (1) (c) Cr. P. C. It cannot be issued in case covered under Section 93 (1) (a) Cr. P. C. In the present case, the application, Annexure -1, itself would indicate that the case was covered under Section 93 (1) (a) Cr. P. C. In the circumstances, it would appear that the order, as such, for search and seizure was not in accord ance with law. But the seizure has already been made and the Court has to consider whether that seizure can be undone. The learned counsel for the applicant has relied upon the case reported in Cr. A. R. 1979 (S. C.) 125. In that case Excise Inspector searched the car without warrant. Provisions of Section 54 of the My sore Excise Act were not complied with and it was held that the conviction of the appellant cannot be sustained and he should be acquit ted. The facts of that case are totally distinguishable. They did not relate to any search or seizure under the provisions of Cr. P. C. The matter related to a special Act, namely Excise Act which contains certain provisions and those provisions were con travened. The learned counsel for the opposite-side has cited the case of State of Maharashtra v. Natwar lal Damodardas Soni A. I. R. 1980 S. C. 593. It was observed that assuming that the search was illegal, it will not affect the validity of the seizure and further investigation by the Customs Authori ties or the validity of the trial. In this ruling, a number of earlier pro nouncements concerning the matt of search and seizure were considers In the case of Radha Krishna v. State of U. P 1963 Suppl-I,s. C. R, 408, it was held that assuming that 'the search was illegal the seizure of the article is not vitiated vention of provisions of Section in and 165 Cr. P. C. were pleaded in that case. Similar view was taken in the case of Shyamlal v. State of Madhya Pradesh A. I. R 1972 S. C. 886, and a number of other Supreme Court pronounce ments cited in the aforesaid case. The principles laid down in these pronouncements are that even if the search and seizure is in contravention of any provisions of the Cr. P. c. subsequent steps in the investigation or the proceedings would not I vitiated or affected in any manner. When that is the position, the cant cannot claim the restoration of the seized properties to him when, as per complaint allegations, the complainant claims to be owner thereof and the case is under be section 409 Cr. P. C. The matter involving question of fact would, of course, be examined by the Magis trate and not at this stage here, I am purposely refraining from exercis ing any opinion on such matters that in any way the Magistrate may not be prejudiced. I find that earlier also an applica tion under Section 482 Cr. P. C. was preferred and has been rejected While 1 agree with the submissions of the learned counsel for the applicant that the principles of resjudicata are in applicable to criminal proceedings, a such I do feel when inherent powers of the Court are invoked to undo any abuse of the process of law. it is always desirable that all the grounds should be taken and the matter should not be agitated again and again by a number of applications under Section 482 Cr. P. C. taking one ground alter another in succession, because if that is done, it may itself amount to abus ing the process of law. I may also observe that for exer cising the inherent powers, there may not be a bar that any revision could be filed or has not been filed or it has been rejected and in suit able places such powers can also be exercised. In the result, the application is dismissed. The stay order is vacated and the Magistrate may expedite the disposal of this case. .