Full Judgment Text
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1511 OF 2007 WRIT PETITION NO.1511 OF 2007 WRIT PETITION NO.1511 OF 2007
Bhupendra M. Shah .
Age: 42 yrs., Occ.: Business, .
R/at.: 2, Big Splash, Sector No.12, .
Vashi, New Bombay ...Petitioner
V/s.
1. Hemraj Premaji Gada .
Age: 68 yrs., Occ.: Shop Merchant, .
R/at: B/11, Ashok Samrat, .
Daftary Road, Malad (East), Mumbai .
2. The State of Maharashtra ...Respondents
Mr.S.V. Marwadi, Advocate, for the Petitioner.
Mr.Rakesh K. Agrawal h/f. Mr.M.P. Vashi &
Associates, Advocate, for Respondent No.1.
Mr.S.R. Shinde, APP, for the Respondent-State.
CORAM : A.P. DESHPANDE, J.
CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J.
DATED : 21ST DATED : 21ST NOVEMBER, 2007. DATED : 21ST NOVEMBER, 2007. NOVEMBER, 2007.
ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Taken
up for final hearing by consent of the parties.
2. The petitioner is an accused in Case No.1034
of 2005 filed by respondent No.1 for an offence under
Section 13 of the Maharashtra Ownership of Flats Act
read with Section 406 of the I.P.C. The petitioner
was running business in the name and style of ’Kasturi
Builders’ and according to the complainant had agreed
to sell a flat of an area of 3,000 sq.feet for a
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consideration of Rs.18,00,000/-. The respondent
allegedly paid a sum of Rs.6,00,000/- towards part
consideration. After filing of a complaint by the
respondent, the Magistrate recorded verification
statement and passed an order of issue process against
the petitioner.
3. The respondent on 4th February, 2006 filed an
application purportedly under Section 93 and 94 of the
Cr.P.C. before the Magistrate for issuing search
warrant against the accused. The Magistrate issued
the search warrant. Being aggrieved by the said
order, the petitioner filed Criminal Revision
Application No.72 of 2007. The Court of Sessions by
an order dated 13th July, 2007 rejected the Criminal
Revision Application and being aggrieved thereby the
present Criminal Writ Petition has been filed. The
material averments made by the respondent in the
application filed under Section 93 and 94 of the
Cr.P.C. reads thus :-
"the accused has an office at D-2,
"Big Splash" building, Sector 17,
Vashi, New Bombay. The accused is not
likely to produce the books of
accounts, pass books, cheque books and
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other documents. To prove the
allegations, it is necessary that the
books of accounts, cheque books, pass
books etc. maintained by the accused
should be available at the time of the
trial. It is, therefore, necessary to
issue a search warrant to search the
premises of the accused and to seize
the following documents :-
(a) Books of Accounts; (b) Receipt
Books; (c) Cheque Books; (d) Pass
Books; (e) List of persons who booked
the flats in the said building."
4. It is thus clear that the respondent had made
a specific prayer in relation to definite documents
which are said to be in possession of the accused and
the search of the premises of the accused is asked
for. The Magistrate by a cryptic order allowed the
application and directed to issue search warrant
against the accused relating to documents at Nos.1 to
5 mentioned in para 6 of the application.
5. The learned Counsel appearing for the
petitioner has made the following submissions :-
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(a). That Sections 91 and 93 constitute a
complete Court in itself.
. Section 91 authorises any Court or any
officer in charge of a police station, when it
is considered that production of any document
or thing is necessary or desirable for the
purposes of any investigation, inquiry, trial
or other proceedings, such Court may issue a
summons, or such officer a written order, to
the person in whose possession or power such
document or thing is believed to be, requiring
him to attend and produce it.
. Section 93 empowers the Court to issue
search warrant when the Court has reason to
believe that a person to whom a summons or an
order under Section 91 has been, or might be,
addressed, will not or would not produce the
document or thing as required by such summons
or requisition may issue a search warrant.
The submission is that reference to "any
person" appearing in Section 91 and Section
93(1)(a) does not include an accused and hence
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the search warrant issued for carrying out
search of the premises of the accused for
seizure of the documents from possession of
the accused cannot be sustained under Section
93(1)(a) of the Code of Criminal Procedure.
(b). It is submitted that an order of
search has serious repercussion as it
adversely affects the social status of a
person and hence such an order should not be
made lightly and need to be passed after
recording reasons in support of the order.
According to the learned Counsel, the impugned
order passed by the Magistrate does not record
reasons for taking recourse to Section
93(1)(a) and hence the order is unsustainable
in law.
6. In support of the first submission, the
learned Counsel appearing for the petitioner has
placed a reliance on a judgment of the Supreme Court
in the case of V.S. Kuttan Pillai V/s. Ramakrishnan
and Anr. reported in 1980 (1) SCC 264. The said
judgment, after noticing the law laid down by the
majority judgment of the Constitution Bench of the
Supreme Court in case of State of Gujarat V/s.
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-6-
Shyamlal reported in AIR 1965 SCC 1251, has observed
thus at the conclusion of paragraph 8 :-
"whatever that may be, it is
indisputable that according to the
majority opinion the expression
’person’ in Section 91(1), (new Code)
does not take within its sweep a
person accused of an offence which
would mean that a summons issued to an
accused person to produce a thing or
document considered necessary or
desirable for the purpose of an
investigation, inquiry or trial would
imply compulsion and the document or
thing so produced would be compelled
testimony and would be violative of
the constitutional immunity against
self- incrimination".
. The judgment then observed in paragraphs 10
and 11 thus :-
"10. In view of the decision in
Shyamlal Mohanlal case one must
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proceed on the basis that a summons to
produce a thing or document as
contemplated by Section 91(1) cannot
be issued to a person accused of an
offence calling upon him to produce
document or thing considered necessary
or desirable for the purpose of an
investigation, inquiry, trial or other
proceeding under the Code of Criminal
Procedure.
11. If summons as hereinbefore
discussed cannot be issued to an
accused person under Section 91(1),
ipso facto a search warrant
contemplated by Section 93(1)(a)
cannot be issued by the Court for the
obvious reason that it can only be
issued where the Court could have
issued a summons but would not issue
the same under the apprehension that
the person to whom such summons is
issued will not or would not produce
the thing as required by such summons
or requisition. A search warrant
under Section 93(1)(a) could only be
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issued where a summons could have been
issued under Section 91(1) but the
same would not be issued on an
apprehension that the person to whom
the summons is directed would not
comply with the same and, therefore,
in order to obtain the document or
thing to produce which the summons was
to be issued, a search warrant may be
issued under Section 93(1)(a).
7. Section 93 envisages situations other than the
one contemplated by Section 93(1)(a) for issuance of a
search warrant. Section 93(1)(b) permits issuance of
a search warrant when the Court does not know where
such document or thing is or is not known of the fact
as to in whose possession the document or thing is.
This is obviously not the situation obtained in the
present case in as much as the complainant has
categorically stated that the documents are in custody
and possession of the accused. Hence sub-section (b)
has no application.
8. The last situation is covered by sub-section
(c) and it postulates that where the Court considers
that the purpose of any inquiry, trial or other
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proceeding under this Code will be served by a general
search or inspection, it can issue a search warrant.
This as well is not the situation in the present case
in as much as there is no general search or inspection
ordered by the Trial Court. A specific order of
search has been passed against the accused and the
direction is to search the premises of the accused and
seize definite documents that are in possession of the
accused. It is thus clear that the situation in the
case in hand is not even referable to Section 93(1)(b)
or (c), but is squarely referable to Section 93(1)(a)
of the Code. If the search warrant is referable to
Section 93(1)(a), then in view of the judgment of the
Supreme Court, no search warrant under Section
93(1)(a) can be issued against an accused.
9. In this view of the matter, I have no
difficulty in concluding that the order passed by the
Magistrate issuing search warrant against the accused,
with a view to have the premises of the accused
searched, is unsustainable in law. Hence the first
contention of the learned Counsel for the accused need
to be accepted. The next submission is also well
merited in as much as the impugned order passed by the
Magistrate does not record reasons in support of the
order. The impugned order passed by the Magistrate is
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cryptic besides being unreasoned.
10. The revisional order passed by the Sessions
Court also does not deal with the contention raised by
the petitioner in its proper perspective. In the
result, the Writ Petition deserves to be allowed and I
proceed to allow the same. The impugned order passed
by the J.M.F.C. Vashi in Case No.R.C.C. 1034/2005
dated 13-3-2007 so also the order passed by the
Additional Sessions Judge, Thane in Criminal Revision
Application No.70/2007 dated 13-7-2007 dismissing the
revision application filed by the petitioner are
quashed and set aside. Rule is made absolute in above
terms with no orders as to costs.
A.P. DESHPANDE, J. A.P. DESHPANDE, J. A.P. DESHPANDE, J.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.1511 OF 2007 WRIT PETITION NO.1511 OF 2007 WRIT PETITION NO.1511 OF 2007
Bhupendra M. Shah .
Age: 42 yrs., Occ.: Business, .
R/at.: 2, Big Splash, Sector No.12, .
Vashi, New Bombay ...Petitioner
V/s.
1. Hemraj Premaji Gada .
Age: 68 yrs., Occ.: Shop Merchant, .
R/at: B/11, Ashok Samrat, .
Daftary Road, Malad (East), Mumbai .
2. The State of Maharashtra ...Respondents
Mr.S.V. Marwadi, Advocate, for the Petitioner.
Mr.Rakesh K. Agrawal h/f. Mr.M.P. Vashi &
Associates, Advocate, for Respondent No.1.
Mr.S.R. Shinde, APP, for the Respondent-State.
CORAM : A.P. DESHPANDE, J.
CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J.
DATED : 21ST DATED : 21ST NOVEMBER, 2007. DATED : 21ST NOVEMBER, 2007. NOVEMBER, 2007.
ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Taken
up for final hearing by consent of the parties.
2. The petitioner is an accused in Case No.1034
of 2005 filed by respondent No.1 for an offence under
Section 13 of the Maharashtra Ownership of Flats Act
read with Section 406 of the I.P.C. The petitioner
was running business in the name and style of ’Kasturi
Builders’ and according to the complainant had agreed
to sell a flat of an area of 3,000 sq.feet for a
::: Downloaded on - 01/04/2024 16:54:02 :::
-2-
consideration of Rs.18,00,000/-. The respondent
allegedly paid a sum of Rs.6,00,000/- towards part
consideration. After filing of a complaint by the
respondent, the Magistrate recorded verification
statement and passed an order of issue process against
the petitioner.
3. The respondent on 4th February, 2006 filed an
application purportedly under Section 93 and 94 of the
Cr.P.C. before the Magistrate for issuing search
warrant against the accused. The Magistrate issued
the search warrant. Being aggrieved by the said
order, the petitioner filed Criminal Revision
Application No.72 of 2007. The Court of Sessions by
an order dated 13th July, 2007 rejected the Criminal
Revision Application and being aggrieved thereby the
present Criminal Writ Petition has been filed. The
material averments made by the respondent in the
application filed under Section 93 and 94 of the
Cr.P.C. reads thus :-
"the accused has an office at D-2,
"Big Splash" building, Sector 17,
Vashi, New Bombay. The accused is not
likely to produce the books of
accounts, pass books, cheque books and
::: Downloaded on - 01/04/2024 16:54:02 :::
-3-
other documents. To prove the
allegations, it is necessary that the
books of accounts, cheque books, pass
books etc. maintained by the accused
should be available at the time of the
trial. It is, therefore, necessary to
issue a search warrant to search the
premises of the accused and to seize
the following documents :-
(a) Books of Accounts; (b) Receipt
Books; (c) Cheque Books; (d) Pass
Books; (e) List of persons who booked
the flats in the said building."
4. It is thus clear that the respondent had made
a specific prayer in relation to definite documents
which are said to be in possession of the accused and
the search of the premises of the accused is asked
for. The Magistrate by a cryptic order allowed the
application and directed to issue search warrant
against the accused relating to documents at Nos.1 to
5 mentioned in para 6 of the application.
5. The learned Counsel appearing for the
petitioner has made the following submissions :-
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(a). That Sections 91 and 93 constitute a
complete Court in itself.
. Section 91 authorises any Court or any
officer in charge of a police station, when it
is considered that production of any document
or thing is necessary or desirable for the
purposes of any investigation, inquiry, trial
or other proceedings, such Court may issue a
summons, or such officer a written order, to
the person in whose possession or power such
document or thing is believed to be, requiring
him to attend and produce it.
. Section 93 empowers the Court to issue
search warrant when the Court has reason to
believe that a person to whom a summons or an
order under Section 91 has been, or might be,
addressed, will not or would not produce the
document or thing as required by such summons
or requisition may issue a search warrant.
The submission is that reference to "any
person" appearing in Section 91 and Section
93(1)(a) does not include an accused and hence
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-5-
the search warrant issued for carrying out
search of the premises of the accused for
seizure of the documents from possession of
the accused cannot be sustained under Section
93(1)(a) of the Code of Criminal Procedure.
(b). It is submitted that an order of
search has serious repercussion as it
adversely affects the social status of a
person and hence such an order should not be
made lightly and need to be passed after
recording reasons in support of the order.
According to the learned Counsel, the impugned
order passed by the Magistrate does not record
reasons for taking recourse to Section
93(1)(a) and hence the order is unsustainable
in law.
6. In support of the first submission, the
learned Counsel appearing for the petitioner has
placed a reliance on a judgment of the Supreme Court
in the case of V.S. Kuttan Pillai V/s. Ramakrishnan
and Anr. reported in 1980 (1) SCC 264. The said
judgment, after noticing the law laid down by the
majority judgment of the Constitution Bench of the
Supreme Court in case of State of Gujarat V/s.
::: Downloaded on - 01/04/2024 16:54:02 :::
-6-
Shyamlal reported in AIR 1965 SCC 1251, has observed
thus at the conclusion of paragraph 8 :-
"whatever that may be, it is
indisputable that according to the
majority opinion the expression
’person’ in Section 91(1), (new Code)
does not take within its sweep a
person accused of an offence which
would mean that a summons issued to an
accused person to produce a thing or
document considered necessary or
desirable for the purpose of an
investigation, inquiry or trial would
imply compulsion and the document or
thing so produced would be compelled
testimony and would be violative of
the constitutional immunity against
self- incrimination".
. The judgment then observed in paragraphs 10
and 11 thus :-
"10. In view of the decision in
Shyamlal Mohanlal case one must
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-7-
proceed on the basis that a summons to
produce a thing or document as
contemplated by Section 91(1) cannot
be issued to a person accused of an
offence calling upon him to produce
document or thing considered necessary
or desirable for the purpose of an
investigation, inquiry, trial or other
proceeding under the Code of Criminal
Procedure.
11. If summons as hereinbefore
discussed cannot be issued to an
accused person under Section 91(1),
ipso facto a search warrant
contemplated by Section 93(1)(a)
cannot be issued by the Court for the
obvious reason that it can only be
issued where the Court could have
issued a summons but would not issue
the same under the apprehension that
the person to whom such summons is
issued will not or would not produce
the thing as required by such summons
or requisition. A search warrant
under Section 93(1)(a) could only be
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issued where a summons could have been
issued under Section 91(1) but the
same would not be issued on an
apprehension that the person to whom
the summons is directed would not
comply with the same and, therefore,
in order to obtain the document or
thing to produce which the summons was
to be issued, a search warrant may be
issued under Section 93(1)(a).
7. Section 93 envisages situations other than the
one contemplated by Section 93(1)(a) for issuance of a
search warrant. Section 93(1)(b) permits issuance of
a search warrant when the Court does not know where
such document or thing is or is not known of the fact
as to in whose possession the document or thing is.
This is obviously not the situation obtained in the
present case in as much as the complainant has
categorically stated that the documents are in custody
and possession of the accused. Hence sub-section (b)
has no application.
8. The last situation is covered by sub-section
(c) and it postulates that where the Court considers
that the purpose of any inquiry, trial or other
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-9-
proceeding under this Code will be served by a general
search or inspection, it can issue a search warrant.
This as well is not the situation in the present case
in as much as there is no general search or inspection
ordered by the Trial Court. A specific order of
search has been passed against the accused and the
direction is to search the premises of the accused and
seize definite documents that are in possession of the
accused. It is thus clear that the situation in the
case in hand is not even referable to Section 93(1)(b)
or (c), but is squarely referable to Section 93(1)(a)
of the Code. If the search warrant is referable to
Section 93(1)(a), then in view of the judgment of the
Supreme Court, no search warrant under Section
93(1)(a) can be issued against an accused.
9. In this view of the matter, I have no
difficulty in concluding that the order passed by the
Magistrate issuing search warrant against the accused,
with a view to have the premises of the accused
searched, is unsustainable in law. Hence the first
contention of the learned Counsel for the accused need
to be accepted. The next submission is also well
merited in as much as the impugned order passed by the
Magistrate does not record reasons in support of the
order. The impugned order passed by the Magistrate is
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-10-
cryptic besides being unreasoned.
10. The revisional order passed by the Sessions
Court also does not deal with the contention raised by
the petitioner in its proper perspective. In the
result, the Writ Petition deserves to be allowed and I
proceed to allow the same. The impugned order passed
by the J.M.F.C. Vashi in Case No.R.C.C. 1034/2005
dated 13-3-2007 so also the order passed by the
Additional Sessions Judge, Thane in Criminal Revision
Application No.70/2007 dated 13-7-2007 dismissing the
revision application filed by the petitioner are
quashed and set aside. Rule is made absolute in above
terms with no orders as to costs.
A.P. DESHPANDE, J. A.P. DESHPANDE, J. A.P. DESHPANDE, J.
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