07 May 2121

Section 101 of the Criminal Procedure Code, 1973 can be considered as the mandate of law to prevent Miscarriage of Justice - Bombay High Court

Case : Angel Click and Anr v. State of Karnataka and Ors. Criminal Writ Petition No. 39 of 2021

Court : Bombay High Court

Bench : Justice Sunil B. Shukre and Justice Avinash G. Gharote

Decided on : 07 May 2121

Relevant Statues

Sections 72, 77, 78, 79, 93, 99, 101, 105, 451 of the Code of Criminal Procedure, 1973

Articles 226 of the Constitution of India, 1950

Brief Facts & Procedure History

1. The relevant seminal facts are that the Petitioners are the traders carrying on the business of sale and purchase of rice from their respective offices situated in the city of Nagpur. Petitioner No. 1 had purchased rice and broken rice of Heritage brand from M/s. S. R. Enterprises and V. K. Traders on various dates and had kept some of the rice bags in a godown situated in Nagpur. Some of the rice purchased by Petitioner No. 1 was sold to Petitioner No. 2 who stored the rice bags in his godown.

2. On 24.12.2020, Respondent No. 1 with a warrant of search and seizure dated 22.12.2020 issued by the learned Judicial Magistrate, First Class, Gangavathi, District Koppal, Karnataka raided these godowns with the aid of Respondent Nos. 3 and 4 and seized the rice bags stored. From the godown of petitioner No. 1, 6140 bags of Heritage brand rice and from the godown of petitioner No. 2, 999 bags of Heritage brand rice were seized by Respondent No. 1.

3. The Petitioners protested to the Commissioner of Police, Nagpur on 30.12.2020 and requested to take appropriate action against the said seizure of rice bags made by Respondent No. 1. Later, they procured a copy of the First Information Report filed by Respondent No. 5 on the basis of which offences punishable under Sections 406 and 420 were registered against five accused persons named therein. The petitioners noticed that they were not named as accused in the First Information Report.

4. Hence, the Petitioners instituted the petition seeking reliefs of the grant of a declaration that the action of search and seizure conducted by Respondent No.1 is arbitrary and illegal and return of the seized goods to the Petitioners. They also sought quashing and setting aside the impugned warrant of search and seizure.

The Issue of the Case

Whether the action of search and seizure conducted by Respondent No. 1 is arbitrary and illegal?

The Observations of the Court

The Honourable Bombay High Court observed the following:

1. Critically analyzed Article 226 of the Constitution of India, 1950 and concurred regarding the jurisdiction of this Court to entertain the petition as the reason being is that a part of the cause of action relating to the question of search warrant arose at places situated within the territorial jurisdiction of this Court. It further concurred with the same stand for the alleged fraudulent transactions.

2. With respect to the availability of an alternate remedy for the Petitioners under Section 451 of the Criminal Procedure Code, 1973 and the procedures followed under Sections 101 and 105 of the Criminal Procedure Code, 1973 during the execution of search warrant, the Court opined that the Honourable Karnataka High Court would be better suited to decide the case. But the claim originating from the procedural aspect can be decided by this Court for the reason stated above.

3. Contemplated that when a search warrant issued by a Court is to be executed beyond the local jurisdiction of the Court issuing it, then it is to the discretion of the Magistrate to execute in any one of the three modes available under Sections 78, 79, 105 of the Criminal Procedure Code, 1973.

4. By referring to the case of Mahesh Pal Singh Vs. Pooran Chand Tiwari, 1987 SCC Online All 402, the Honourable Bombay Court observed the purpose of a search warrant is to facilitate investigation and to collect credible evidence.

5. Observed that the procedure contained in Section 101 of the Criminal Procedure Code, 1973 which deals with disposal of things found in the search is mandatory while dealing with the seizure of articles found in the execution of the search warrant under Sections 78 or 79 of the Criminal Procedure Code, 1973. It is mandatory to follow the procedure even when it is done under Section 105 of the Criminal Procedure Code, 1973 though in exceptional cases, a departure from Section 101 procedure is permissible.

6. By placing reliance on the cases of Taylor Vs. Taylor (1875), Nazir Ahmad Vs. Emperor, AIR 1936 PC 253 (2) the Court explained that Section 101 of the Criminal Procedure Code, 1973 could be seen as the mandate of law prescribed to prevent miscarriage of justice and therefore it has to be followed except in rare cases.

The Decision held by the Court

The Honourable Bombay High Court partly allowed the petition and declared that the seizure of the rice bags is illegal. Respondent No. 1 is directed to restore the rice bags to the Petitioners and is at the liberty to obtain a fresh search warrant and execute it afresh in accordance with the law.

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