KALINGA TUBES LTD Vs. D SURI

JUDGEMENT

(1.) THESE arc three applications made under Article 226 of the Constitution and Section 439, Criminal P. C. They arise out of certain searches made in the premises at Cuttack of the petitioners in the three applications by Sri S. W. Abbas, Inspector, Special Police Establishment Ministry of Home Affairs, Government of India, on 14 -6 -52. On the said searches it would appear that nothing of an incriminating nature with reference to the purpose of the search was recovered from the premises of the petitioners in O. J. C. 17/52, but some documents were seized from the house of the petitioners 1 and 2 in O. J. C. 33/52. All the petitioners in the three petitions before us applied to the Magistrate who issued the search warrants for certified copies of (1) the report made by the police or any other person on the basis of which the search warrant was issued; (2) the search warrant; and (3) copies of the order -sheet of the Magisterial record. The Magistrate granted certified copies only of the search warrant and declined to grant certified copies of the other documents asked for. These petitioners, thereupon, came up to this Court with these applications. In all the applications, the petitioners ask for two reliefs : (1) a direction tothe Magistrate to grant certified copies of such of the documents applied for whose copies have been refused by him : (2) To set aside the order issuing the search warrant and the searches made thereunder. It may be noted that in O. J. C. 33/52, the petitioners also ask for the return of the documents and papers seized at the search. The two questions thus raised on the hearing of these applications are : (1) The right of the petitioners to obtain copies of the documents they have asked for; (2) the legality of the searches and the relief, if any, to be granted.

(2.) WE have heard fairly exhaustive arguments from both sides on these points. With reference to the first point, the petitioners' advocate relies entirely on Section 548, Criminal P. C. which runs as follows: 'If any person affected by a judgment or order passed by a Criminal Court, desires to have a copy of the Judge's charge to the Jury, or of any order or deposition or other part of the record, he shall, on applying for such a copy, be furnished therewith.' His argument is that if as a fact the Magistrate has recorded a formal order on the basis of any report or application made to him by a police officer, he is entitled to copies thereof by virtue of this section. He points out that a Magistrate acting under Section 96, Criminal P. C. is statedly a Court. He therefore contends that Section 548 applies in terms. On the other side it is argued that while it may be correct to say that the Magistrate acting under Section 96, Criminal P. C. is a Criminal Court, it does not follow that the persons whose premises are searched, are entitled either to a copy of the information or report on which the search warrant is issued or of the order directing the issue of the search warrant. The learned Advocate -General, however, apart from any legal contention, was prepared to furnish the advocate on the other side with a copy of the order passed by the Magistrate for the issue of the search warrant, in order to enable the petitioners' advocate to argue the question relating to the legality of the search; but contended that so far as the report of the police officer on which the order is based, the petitioners are not entitled to copies. He has relied on the case in - -'Anantapadmanabhiah v. Emperor', AIR 1930 Mad 975 and - - 'Queen -Empress v. Arumugham', 20 Mad 189 (PB), to show that the copies of the police reports on which a Magistrate acts, cannot be granted. On the other side our attention has been drawn to General Rules and Circular Orders (Criminal' of this Court Vol. I, Part IV, Chap. 1, Rule 4 which is as follows:

(3.) THE question as regards copies relating to the report or information on which the order is based remains. As already stated, we do not propose in this case to decide the larger question that has been raised with reference to Section 548, Criminal P. C. On a reference to the records of the Magistrate which have been called for by this Court, we find that the order of the Magistrate is based not on any police report, but on an ordinary application by the Inspector of Special Police Establishment, Sri S. W. Abbas, which sets out the circumstances, under which he felt called upon to apply for the warrants of search. When an order for search has been made on the basis of such an application, which is not in itself a police report, setting out any of the materials collected in the investigation, we can see no legal objection to the grant of a copy thereof. Indeed, if a person affected by the search, is entitled to a copy of the order, if any, issued for search, it seems to be reasonable to say that he is equally entitled to obtain a copy of the application (as distinguished from a police report) on which the order itself was based, in order that such order may be fairly understood. Since in this case the learned Advocate -General has, of his own accord, furnished a copy of the order to the Advocate on the other side, we consider that copy of the application made by the Police Inspector, Shri Abbas, to the Magistrate requesting for the issue of search warrants, may also be granted. We accordingly direct that certifiedcopies be granted of the Magistrate's order dated 14th June 1952, and of the application dated 13th June 1952, made by the Inspector, Shri S. W. Abbas, for the issue of the search warrants.