M. Wahajuddin, J. - (1.) THE applicant is being prosecuted on a private complaint of the opposite party under Section 409 Code of Criminal Procedure filed on 25 -6 -1979. It would appear that in pursuance of a search and seizure warrant issued by the Magistrate concerned medicines, account books, vouchers etc. have been seized from the premises of Brijendra and Brijendra. The order is Annexure III and the search warrant, also directing seizure is Annexure IV. The order was passed on an application preferred by the opposite party, Annexure 1, supported by an affidavit, Annexure II. In the application for search and seizure, it was stated that the belongings are in possession of the accused and prayer for his search and seizure from his place was made. The warrant issued by the Magistrate is, however, not for any personal search or search of the premises of the accused person, but it purports to be a warrant for general search.
(2.) THE first ground urged is that there is a violation of Article 20 of the Constitution as any accused person cannot be called upon to furnish any incriminating evidence against him. Reliance has been placed upon the case of State of Gujarat v. Shyam Lal Mohan Lal Choksi, AIR 1965 SC 1251 wherein it was held that no search warrant could be issued to search for documents known to be in possession of the accused, but a general search or inspection can still be ordered. The learned Counsel for the opposite side relied upon the case of V.S. Kuttan Pillai v. Ramakrishnan reported in : AIR 1980 SC 185. In that case the following observations have been made: It was however, urged that Section 93(1)(c) must be read in the context of section 93(1)(b) and it would mean that where documents are known to be at a certain place and in possession of a certain person any general search warrant as contemplated by Section 93(1)(c) will have to be ruled out because in such a situation section 93(1)(a) alone would be attracted. Section 93(1)(b) comprehends a situation where the Court issues a search warrant in respect of a document or a thing to be recovered from a certain place but it is not known to the Court whether that document of thing is in possession of any particular person. Under Clause (b) there is a definite allegation to recover certain document or thing from a certain specific place but the Court is unaware of the fact whether that document or thing or the place is in possession of a particular person. Section 93(1)(c) comprehends a situation where a search warrant can be issued as the Court is unaware of not only the person but even the place where the documents may be found and that a general search is necessary. One cannot, therefore, cut down the power of the Court under Section 93(1)(c) by importing into it some of the requirements of Section 93(1)(b). No canon of construction would permit such an erosion of power of the Court to issue a general search warrant. It also comprehends not merely a general search but even an inspection meaning thereby inspection of a place and a general search thereof and seizure of documents or things which the Court considers necessary or desirable for the purpose of an investigation, inquiry, trial or other proceedings under the Code. The High Court accordingly sustained the general search warrant in this case under Section 93(1)(c). I have considered the implication. It may be observed that in paragraph Nos. 10 and 11, read together, it was observed that the court was proceeding on a certain assumption in view of the decision in Shyamlal Mohanlal's case though there are conflicting observations in different pronouncements and a search under Section 93(1) Code of Criminal Procedure would not be issued where the summons could not be issued to a person accused of an offence, calling upon him to produce documents or things considered necessary. It would thus appear that in no way there has been any dissent from the earlier pronouncements so far as this particular aspect is concerned and the aforesaid pronouncement lays down that while otherwise, general search warrant can be issued as contemplated under Section 93(1)(c) Code of Criminal Procedure. It cannot be issued in case covered under Section 93(1)(a) Code of Criminal Procedure. In the present case, the application, Annexure I, itself would indicate that the case was covered under Section 93(1)(a) Code of Criminal Procedure.
(3.) IN the circumstances, it would appear that the order, as such, for search and seizure was not in accordance with law.;