MANU/MP/0409/2015

Equivalent/Neutral Citation: 2015(2)JLJ274, 2015(3)MPHT325, 2015(II)MPJR145, 2015(3)MPLJ75

IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)

Writ Petition No. 2352/15
Decided On: 24.04.2015
Avadhesh Singh Tomar and Ors. Vs. State of Madhya Pradesh and Ors.
Hon'ble Judges/Coram:
Sheel Nagu and B.D. Rathi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Anil Mishra, Advocate
For Respondents/Defendant: R.P. Rathi, Government Advocate
ORDER
B.D. Rathi, J.
1. This writ petition in the style of Pro Bono Publico has been filed by the petitioners,
claiming following reliefs:-
"1. This Hon'ble Court may kindly be pleased to direct the respondents No. 3 to
8 not to seek Search Warrants under section 93 of the Code of Criminal
Procedure for the purposes of search and seizure for investigation of registered
offence under the P.C. Act 1988 & other various Acts.
2 . The competent Special Courts notified under the P.C. Act, 1988, be also
directed not to issue Search warrants to the respondents for the routine course
search and seizure for the investigation of Offences registered under the P.C.
Act & other various Acts.
3 . Further-more the respondents be directed to strictly comply with the
provisions as contained U/Sec 165 & Sec 166 of Code of Criminal procedure &
other relevant sections enacted for the purpose of Search & Seizure for
investigation of Offences registered under the P.C. Act 1988 & other various
Acts.
4. That, any other suitable & proper relief that this Hon'ble Court deems fit for
doing justice in the matter may be granted."
2 . In support of the petition, it is submitted by Shri Mishra, learned counsel that in a
routine manner and frequently the police agency obtains a search warrant from the
concerning court under Section 93 of Cr.P.C. in the prescribed appended Formate No.
10, which is not permissible because specific provision under Section 165 of Cr.P.C. has
been made by the legislation for the purposes of making search but even then by
shifting burden and also to avoid statutory duty, such a process is being adopted. That
apart, the power under section 93 of Cr.P.C. cannot be used by the court for issuing
search warrant when matter is under investigation because this power can be exercised
at the moment the orders are passed by the court competent under section 91 or 92 of

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Cr.P.C. but in no way search warrant can be issued during the course of investigation. It
is submitted by the counsel that there is a difference between the inquiry and
investigation. The word "investigation" has not been included in inquiry. Attention of
this court has been drawn on this point by referring the judgments rendered by Hon.
Supreme Court in the cases of State of West Bengal Vs. Sampat Lal
(MANU/SC/0126/1984 : AIR 1985 SC 195), H.N. Rishbud Vs. State of Delhi
(MANU/SC/0049/1954 : AIR 1955 SC 196), Wazir Chand Vs. State of H.P.
(MANU/SC/0007/1954 : AIR 1954 SC 415), Hazari Lal Gupa Vs. Rameshwar Prasad
(MANU/SC/0117/1971 : AIR 1972 SC 484), Niranjan Singh Vs. State of U.P.
(MANU/SC/0033/1956 : AIR 1957 SC 142), Manohar Lal Sharma Vs. Principal Secretary
& Ors [2013 Legal Eagle (SC) 10], M.C. Abraham & another Vs. State of Maharashtra &
others MANU/SC/1190/2002 : (2003) 2 SCC 649 and Manubhai Ratilal Patel through
Ushaben Vs. State of Gujrat & others MANU/SC/0800/2012 : (2013) 1 SCC 314.
3 . It is further argued by the counsel that it is statutory obligation and duty of police
authority to investigate into crime and courts normally ought not to interfere and guide
investigating agency as to in what manner investigation has to proceed. But
unfortunately simply on the request of the Investigating Agency the trial courts
concerned are issuing search warrants under section 93 of Cr.P.C. without applying their
minds. This practice should be stopped by issuing appropriate writ. In support of his
arguments, learned counsel has taken support from the ratio of decision in the case of
D. Venkatasubramaniam & others Vs. M.K. Mohan Krishnamchari & another
MANU/SC/1627/2009 : (2009) 10 SCC 488.
4 . It is not disputed by the learned counsel that an alternative efficacious remedy is
available in such matters and in that eventuality the concerned person can approach the
appropriate forum if aggrieved from such kind of search warrant but even then writ
jurisdiction can be resorted to in order to avoid multiplicity of dispute. In support of
such plea, learned counsel placed reliance on the decision in the case of Jaipur Shahar
Hindu Vikas Samiti Vs. State of Rajasthan & others MANU/SC/0322/2014 : (2014) 5
SCC 530.
5. Substantially and essentially, the grounds pressed in this petition are that off and on,
during the course of investigation of the registered offences, the respondents/authority
whom powers are vested to make search under section 165 of Cr.P.C., seek indulgence
of the court by resorting to provisions under section 93 of Cr.P.C. Learned counsel for
the petitioners contends that this action on the part of the respondents shows gross
negligence. The powers enumerated under sections 93 and 165 of Cr.P.C. are altogether
different and same cannot be permitted to be used in a fancy manner. One cannot be
permitted to encroach upon the power of the Court. No canon of construction permits
such an erosion of power of the court to get issued search warrant. Simultaneously, the
courts should also be vigilant of the fact and refrain themselves from proceeding at the
behest of the Investigating Agency. Hence, it is prayed that appropriate directions may
be issued against police authorities to safeguard the interest of the public at large by
way of mandamus with observation that as far as possible search be made in
accordance with the provisions given under section 165 of Cr.P.C. instead of resorting
to the provisions contemplated under Section 93 of Cr.P.C. in getting search warrant
frequently from the courts.
6. Learned Govt. Advocate for the State on the other hand, disputing and controverting
the allegations/contentions made in the PIL, submitted that the instant PIL lacks bona
fide and rather it is a proxy petition. Therefore, it is prayed that the petition may be
dismissed.
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7 . Having regard to the arguments, we have examined the entire case with relevant
provisions of law.
8 . Before adverting to the contentions raised by the learned counsel for the petitioner
and the issue generating this writ petition, the necessary provisions of Sections 93 and
and 165 of Cr.P.C. are quoted below:-
"93. When search warrant may be issued:
(1)(a) Where any Court has reason to believe that a person to whom a
summons or order under section 91 or a requisition under sub-section
(1) of section 92 has been, or might be, addressed, will not or would
not produce the document or thing as required by such summons or
requisition, or
(b) where such document or thing is not known to the Court to be the
possession of any person, or
(c) where the Court considers that the purposes of any inquiry, trial or
other proceeding under this Code will be served by a general search or
inspection, it may issue a search-warrant; and the person to whom
such warrant is directed, may search or inspect in accordance therewith
and the provisions hereinafter contained.
(2) The Court may, if it thinks fit, specify in the warrant the particular
place or part thereof to which only the search or inspection shall
extend; and the person charged with the execution of such warrant
shall then search or inspect only the place or part so specified.
(3) Nothing contained in this section shall authorise any Magistrate
other than a District Magistrate or Chief Judicial Magistrate to grant a
warrant to search for a document, parcel or other thing in the custody
of the postal or telegraph authority.
165. Search by police officer.
(1) Whenever an officer in charge of a police station or a police officer
making an investigation has reasonable grounds for believing that
anything necessary for the purposes of an investigation into any
offence which he is authorised to investigate may be found in any place
with the limits of the police station of which he is in charge, or to
which he is attached, and that such thing cannot in his opinion be
otherwise obtained without undue delay, such officer may, after
recording in writing the grounds of his belief and specifying in such
writing, so far as possible, the thing for which search is to be made,
search, or cause search to be made, for such thing in any place within
the limits of such station.
(2) A police officer proceeding under sub-section (1), shall, if
practicable, conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no
other person competent to make the search present at the time, he
may, after recording in writing his reasons for so doing, require any

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 officer subordinate to him to make the search, and he shall deliver to
such subordinate officer an order in writing, specifying the place to be
searched, and so far as possible, the thing for which search is to be
made; and such subordinate officer may thereupon search for such
thing in such place.
(4) The provisions of this Code as to search-warrants and the general
provisions as to searches contained in section 100 shall, so far as may
be, apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3)
shall forthwith be sent to the nearest Magistrate empowered to take
cognizance of the offence, and the owner or occupier of the place
searched shall, on application, be furnished, free of cost, with a copy of
the same by the Magistrate.
9. To consider whether present petition is maintainable or not, following two question
are cropped up for consideration:-
(i) Whether by invoking jurisdiction under section 93(1)(c) of Cr.P.C. search
warrant can be issued by the court competent on the request of the police
authority/Investigating Agency?.
(ii) Whether by entertaining this petition, writ of mandamus can be issued?.
1 0 . It is not a question before this court to consider whether trial includes
"investigation" or not. Certainly, trial is something different from investigation. In this
context, we need not to emphasize or elaborate further word "inquiry" or "trial". It is
settled law that both are different procedure as defined under the Code of Criminal
Procedure. On bare perusal of section 93 Cr.P.C., it indicates that provisions given
under section 93(1)(c) is something different from sections 93(1)(a) and 93(1)(b). The
provisions given in sub-clause (c) provides where the court considers that the purposes
of any inquiry, trial or "other proceeding" under this Code will be served by a general
search or inspection, in that event search warrant can be issued. This point has already
been considered by the Calcutta High Court in the case of Hasimara Industries Ltd. &
another Vs. The Company Law Board & others MANU/WB/0310/1975 : (1976 Cri.L.J.
50) and held as under:-
"An investigation is a proceeding under the Code within the meaning of the
third clause of Section 96(1) (Old Code = Sec. 93(1) of New Code). From this
point of view a general search warrant issued by a Magistrate in aid of an
investigation under the code is valid."
11. In the case of V.S. Kuttan Pillai Vs. Ramakrishnan & another (MANU/SC/0285/1979
: AIR 1980 SC 185) while dealing with the same situation arising from the case
observed as under:-
"14. Section 93(1)(c) of the new Code comprehends a situation where the Court
may issue a search warrant when it considers that the purpose of an inquiry,
trial or other proceeding under the Code will be served by a general search or
inspection to search, seize and produce the documents mentioned in the list.
When such a general search warrant is issued, in execution of it the premises
even in possession of the accused can be searched and documents found
therein can be seized irrespective of the fact that the documents may contain
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 some statement made by the accused upon his personal knowledge and which
when proved may have the tendency to incriminate the accused. However, such
a search and seizure pursuant to a search warrant issued under s. 93(1)(c) will
not have even the remotest tendency to compel the accused to incriminate
himself. He is expected to do nothing. He is not required to participate in the
search. He may remain a passive spectator. He may even remain absent. Search
can be conducted under the authority of such warrant in the presence of the
accused. Merely because he is occupying the premises which is to be searched
under the authority of the search warrant it cannot even remotely be said that
by such search and consequent seizure of documents including the documents
which may contain statements attributable to the personal knowledge of the
accused and which may have tendency to incriminate him, would violate the
constitutional guarantee against self-incrimination because he is not compelled
to do anything. A passive submission to search cannot be styled as a
compulsion on the accused to submit to search and if anything is recovered
during search which may provide incriminating evidence against the accused it
cannot be styled as compelled testimony. This is too obvious to need any
precedent in support. The immunity against self- crimination extends to any
incriminating evidence which the accused may be compelled to give. It does not
extend to cover such situation as where evidence which may have tendency to
incriminate the accused is being collected without in any manner compelling
him or asking him to be a party to the collection of the evidence. Search of the
premises occupied by the accused without the accused being compelled to be a
party to such search would not be violative of the constitutional guarantee
enshrined in Article 20(3).
15. It was, however, urged that s. 93(1)(c) must be read in the context of s.
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 s. 93(1)(c) will have to be ruled out because in such a
situation s. 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 or 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 s. 93(1)(c) by importing into
it some of the requirements of s. 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 proceeding under the Code.
The High Court accordingly sustained the general search warrant in this case
under s. 93(1)(c)."
12. So as per the proposition of law laid down by Hon. Supreme Court in the case of
V.S. Kuttan Pillai (supra) it becomes crystal clear that general search warrant may be
issued by the court competent by invoking powers under section 93(1)(c) of Cr.P.C.
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There is no rider or exception that prior to take action as per provisions given under
section 165 of Cr.P.C., search warrant can not be issued by the competent court by
invoking powers under section 93(1)(c) of Cr.P.C. Therefore, the Investigating Agency
may take search as per provisions under section 165 of Cr.P.C. or if required may
approach the competent court under section 93(1)(c) of Cr.P.C., as the case may be.
Not only this, the decision in the case of V.S. Kuttan Pillai (supra), also signifies that
the provisions of Section 93(1)(c) is not hit by Article 20(a) of the Constitution of India,
relevant paras of which are quoted above.
13. In the case of M.P. Sharma and others Vs. Satish Chandra, District Magistrate, Delhi
& others (MANU/SC/0018/1954 : AIR 1954 SC 300), it was held by the Apex Court that
Article 19(1)(f) of the Constitution of India declares the right of all citizens to acquire,
hold and dispose of property subject to the operation of any existing or future law in so
far as it imposes reasonable restrictions, on the exercise of any of the rights conferred
thereby in the interests of general public. In the same way it is further held as under:-
"2.................But, a search by itself is not a restriction on the right to hold and
enjoy property. No doubt a seizure and carrying away is a restriction of the
possession and enjoyment of the property seized. This, however, is only
temporary and for the limited purpose of investigation. A search and seizure is,
therefore, only a temporary interference with the right to hold the premises
searched and the articles seized. Statutory regulation in this behalf is necessary
and reasonable restriction cannot per se be considered to be unconstitutional.
The damage, if any caused by such temporary interference if found to be in
excess of legal authority is a matter for redress in other proceedings. We are
unable to see how any question of violation. of Art. 19(1)(f) is involved in this
case in respect of the warrants in question which purport to be, under the first
alternative of S. 96(1) of the Criminal P.C."
1 4 . After thus examining the matter to a rigorous test on the touchstone of the
principles of law laid down by the Hon'ble Apex Court, it can be safely held that there is
no violation of Article 19(1) or Article 20(3) of the Constitution of India in issuing
search warrant by the courts.
15. Now, while considering to question No. (ii), we find that the provision of section
93(1)(c) of Cr.P.C. is discretionary in nature and being so, no writ will lie where duty is
of discretionary nature. Mandamus is a judicial remedy which is in the form of an order
from superior court to any government, court, corporation or public authority to do or
to forbear from doing some specific act which that body is obliged under law to do or
refrain from doing, as the case may be, and which is in the nature of a public duty and
in certain cases of a statutory duty. No one can ask for a mandamus without a legal
right. There must be a judicially enforceable as well as legally protected right before
one suffering a legal grievance can ask for a mandamus. A person can be said to be
aggrieved only when he is denied a legal right by someone who has a legal duty to do
something and abstains from doing it. Moreover, the special remedy provided in Article
226 is not intended to supersede completely the modes of obtaining relief by a action in
a civil court or to deny defences legitimately open in such actions. The power to give
relief upon Article 226 is discretionary and it is specially true in the case of power to
issue the writ of mandamus.
16. In the case at hand, power conferred on the court under section 93(1)(c) of Cr.P.C.
is purely discretionary in nature and therefore it is left open to the aggrieved person
concerned to claim damage, if any caused by such temporary interference if found to be

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in excess of legal authority by way of other proceedings for redressal of his grievance.
Apart that such kind of general direction in the nature of writ of mandamus cannot be
issued when the law permits the competent court to issue search warrant under the
provisions as envisaged in section 93(1)(c) of Cr.P.C. and when further there is no bar
created for invoking such powers. We further make it clear that issuing of search
warrant by invoking powers under section 93(1)(c) of Cr.P.C. does not tantamount to
interference with investigation or issue of any particular direction to investigate the
matter in a particular manner. To sum up, issuance of warrant under section 93(1)(c) of
Cr.P.C. does not lead to interference with the investigation and therefore also no writ
can be issued.
17. Resultantly, we are of the considered view that this petition is not maintainable
because no writ of any kind can be issued by this court for the reasons mentioned
above. Petition is therefore dismissed.
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