AFTAB AHMED Vs. KAILASHPATI DALMIA

JUDGEMENT

(1.) On February 5, 1980, Kailashpati Dalmia, the opposite party herein, filed a complaint before the Sub-Divisional Judicial Magistrate, Alipore, against Aftab Ahmed and others alleging commission of offences under sections 147, 148, 448, 341, 323, 324, 326, 325, 379, 380, 427 and 506 of the Indian Penal Code. The material allegations of the complaint are that on February 3, 1980, the accused persons, after forming an unlawful assembly, trespassed into the premises No.4, Ballygugne Park Road, Calcutta, which was in possession of the complainant, assaulted the inmates of the house, caused mischief to the properties lying therein and also committed theft of certain valuable properties. Along with the complaint an application was filed by the complainant for issuing a search warrant for recovery of valuable ornaments, jewelleries, silver-utensils, valuable documents and papers, furniture and other house hold articles lying in the said premises and to be identified by the complainant.

(2.) The learned Sub-Divisional Judicial Magistrate took cognizance upon the said complaint and transferred the same case to the Court of the learned Judicial Magistrate, 6th Court, Alipore, under section 192(2) of the Code of Criminal Procedure for enquiry and trial. The transferee court examined the complainant on solemn affirmation as also the four witnesses produced by him and perused certain documents produced by the complainant in support of his case. On being satisfied therefrom that a prima facie case was made out under sections 448, 323, 324, 427, and 380 of the Indian Penal Code he issued process against all the accused persons, including the petitioner. The learned Magistrate also considered the application filed by the complainant for issuing search warrant and allowed the same, directing the Deputy Commissioner, South, to execute the search warrant and further directing that if the properties were recovered the same may be kept in the custody of a third party until further orders. Aggrieved by the order issuing search warrant, the petitioner moved this court and obtained the present Rule.

(3.) Mr. Dilip Kumar Dutt, the learned Advocate appearing for the petitioner, submitted that before issuing a search warrant under section 93 of the Code of Criminal Procedure it was incumbent on the part enquiry, trial or other proceeding would be served by a general search or inspection. According to Mr. Dutt in absence of such satisfaction and recording reasons for the same the order of the learned Magistrate issuing search warrant was illegal and without jurisdiction. In support of his contention Mr. Dutt relied upon the judgment of the Supreme Court in the case of (1) V. S. Kuttan Pillai v. Ramakrishnan and another reported in A.I.R. 1980 S.C. 185. Mr. Sankardas Banerjee, the learned Advocate appearing for the complainant opposite party, on the other hand, contended that the materials on record clearly made out a case for issuing search warrant and no exception can be taken to the order passed by the learned Magistrate issuing search warrant. Mr. Banerjee submitted that besides the complainant four witnesses were examined on his behalf and their depositions prima facie go to indicate the commission of the offences by the accused and necessity of issuing the search warrant. At the time of hearing of this Rule Mr. Banerjee placed before me medical reports showing that some of the witnesses of the complainant sustained injuries in the incident which is the subject matter of the complainant.