Decided on April 14,1966



A.S.SARELA - (1.) In this Criminal Revision Application the legality and the propriety of the order of search warrant issued under sec. 96(1) of the Criminal Procedure Code by the City Magistrate Third Court Ahmedabad in a case pending before him has been challenged by the accused in that case. The opponent No. 1 to this revision application is the original complainant and the opponent No. 2 is the State of Gujarat. The opponent No. 1 will be referred to hereinafter as the complainant and the applicant as the accused.
(2.) The material facts are these. On 17-3-1966 the complainant filed a complaint before the City Magistrate alleging that the accused had cheated him and committed an offence under sec. 420 Indian Penal Code. The alleged cheating concerns some machinery the details of which were set out in a separate application made by the complainant on the same day to the Magistrate in which he sought a search warrant in respect of that machinery. I shall come to that application presently. In the complaint the case of the complainant was that the accused had agreed to sell his machinery to him for Rs. 14000/had passed a written agreement to that effect had obtained the price from him and passed a receipt for payment of that price and had told him to collect the machinery from his place. All this according to the complainant took place on 16-3-1966. It is then alleged in the complaint that when the complainant went there to collect the machinery as agreed upon he was obstructed by the family members of the accused and the accused also denied the receipt of the money and the liability to hand over the machinery Accordingly he came to the court with this complaint on 17-3-1966 alleging an offence of cheating against the accused. On the same day he made to the court the application earlier mentioned for a search warrant. In that application he alleged that if the accused comes to know of the filing of the complaint he would shift the machinery and in that event the complaint made by the complainant would be of no avail as the machinery was an important piece of evidence. He therefore prayed that the machinery betaken into the custody of the court immediately by a search warrant. The learned Magistrates order on that application is Search Warrant to issue. In execution of that search warrant the machinery has been brought to the court. Against that order the accused had filed this revision application.
(3.) Mr. H.M. Chinoy who argued the matter for the accused applicant made two submissions namely 1 That the order issuing a search warrant was not in conformity with the provisions of sec. 96(1) of the Criminal Procedure Code under which the warrant is issued; and 2 That the provisions of sec. 96(1) cannot be availed of for this purpose as it amounts to compelling the accused to produce evidence which is likely to incriminate him. In the revision application it was also prayed that the process under sec. 420 Indian Penal Code against the accused on the complaint should also be quashed because no offence under sec. 420 I. P. C. was disclosed but this was a matter of civil rights and liabilities of the parties. This last prayer was not argued before me and Mr. Chinoy had stated that he does not desire any decision thereon of the two submissions earlier set out I propose to consider first the first submission. If it is accepted it would not be necessary to consider the second submission. ;

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