C IYAVOO CHETTY TRADING UNDER THE NAME AND STYLE OF RIPON AND CO Vs. JEHANGHIR MHOLMES, MANAGING PROPRIETOR OF JHOLMES AND CO

JUDGEMENT

(1.) I have no hesitation in holding that the Magistrate acted in a very high. handed manner in issuing the search warrant. The affidavit in support of the application is a very meagre one. It does not state when the applicant became aware of the offence complained of: it gives the opinion of the deponent that a summons may not have the desired effect.

(2.) The Magistrate should, under the circumstances, have asked for further proof from the complainant before issuing the warrant. He seems to have ignored the existence of Section 96 of the Code of Criminal Procedure and the limitations it places upon his powers to issue a search warrant. He has recorded no reasons for taking the unusual step of issuing a search warrant in the first instance. It is desirable to draw his attention to the fact that the act of issuing a search warrant is a judicial act, as pointed out in Mahomed Jackariah and Co. v. Ahmed Mahomed 15 C. 109 : 12 Ind. Jur. 259 : 7 Ind. Dec. (N, S.) 658. and that it was his duty to have weighed the circamstanes before making up his mind on the question.

(3.) The materials placed before the Magistrate were wholly insufficient to warrant him in acting as he did. J, therefore, set aside his order in issuing a search warrant.