K.P Vijaya Mohan and others v. N. Jaya Kumar and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** ## **Crl.MC.No. 8672 of 2018** **C.M.P.NO.3740/2018 IN CMP 3647/2018 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM** ## **PETITIONERS/ACCUSED NOS.1 TO 6:** - **1 K.P VIJAYA MOHAN, AGED 68 YEARS, RESIDING AT PRASANTI, KESAVADEV ROAD, MUDAVANMUGAL, POOJAPPURAM, THIRUVANANTHAPURAM 695 012.** - **2 ANIL KUMAR PANDALA, 5/1984-1, SABARIRAM, WARRIAM GARDEN, SREEKRISHNA LANE, AMBALAMUKKU, THIRUVANANTHAPURAM 695 003.** - **3 R. SREEDHAR, SREENIDHI, T.C 37/275, PADMATHEERTHAM NORTH, THIRUVANANTHAPURAM 695 023.** - **4 BIJU K. THOMAS, 6A, NIKUNJAM FORTUNE, KOWDIAR, THIRUVANANTHAPURAM 695 003.** - **5 K.S KATHIRESH, NO. 20, ASHWARYA, SUBHASH NAGAR, THIRUVANANTHAPURAM 695 008.** - **6 GEORGE C. MATHEW, TC 9/2750(3), R.A NO. 274-1, CSM NAGAR, THIRUVANANTHAPURAM 695 010.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR SMT.A.MEGHA SRI.JELSON J.EDAMPADAM** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 N. JAYA KUMAR, 11 F, KULEENA, SHIVAJI PEARL, JAWAHAR NAGAR, THIRUVANNATHAPURAM 695 003.** - **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (SUB INSPECTOR OF POLICE, MUSEUM POLICE STATION).** **Crl.MC.No. 8672 of 2018** **2** **R2 BY ADV. SRI.SUMAN CHAKRAVARTHY, SENIOR GOVERNMENT PLEADER R2 BY SMT. K.SHEEBA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 8672 of 2018** **3** ## **ORDER** The petitioners herein are the principal officer bearers of the Trivandrum Tennis Club, a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955. They have invoked the inherent jurisdiction of this Court to quash order dated 6.12.2018 passed by the learned Chief Judicial Magistrate, Trivandrum in C.M.P. No.3740 of 2018 in CM.P. No.3647 of 2018. 2. It appears that a complaint was lodged by the 1[st] respondent under Section 190 of the Cr.P.C. before the learned Magistrate with a prayer to take cognizance of the offence under Sections 406, 420 and 120B of the IPC. Along with the complaint, an application under Section 93 of the Cr.P.C. was filed for issuance of a search warrant. 3. The complaint as well as the petition are seen filed on 1.12.2018. 4. The allegation in the complaint is that the petitioners, being the President and other office bearers of the Trivandrum Tennis Club, in violation to the mandate and direction of law, and against the provisions of the bye-laws, admitted a certain S.Mahesh Kumar as a member of the Tennis Club and committed the offence. **Crl.MC.No. 8672 of 2018** **4** 5. It does not appear from the impugned order that cognizance of the offence was taken by the learned Magistrate. By a laconic order dated 6.12.2018, the application was allowed. The order is extracted below for easy reference. “(1) Petition praying to issue search warrant. (2) Heard. Petition allowed. Permission granted to conduct search in the office of Trivandrum Tennis Club, Kowdiar for seizing the items mentioned in the petition in accordance with law. ………………...” 6. The learned counsel appearing for the petitioners submitted that the issuance of a search warrant is a judicial function and the learned Magistrate was expected to give reasons which persuaded him to exercise his discretion to allow the application and order the search and seizure of records such as Minutes Book, Membership lists, ledger accounts, inward registers etc. pertaining to several years. According to the learned counsel, the words “reason to believe” coupled with other words in the section contemplate an objective determination based on application of mind and deliberation as opposed to a purely subjective consideration. He would urge that the learned Magistrate without even taking cognizance of the offence and without ascertaining whether such a drastic action was contemplated in the facts of the instant case, has **Crl.MC.No. 8672 of 2018** **5** casually allowed the application. He would contend that none of the conditions under which a search warrant could be issued as laid down in Section 93 of the Cr.P.C. was made out in the instant case. 7. The learned counsel appearing for the 2[nd] respondent, on the other hand, submitted that the learned Magistrate has exercised her discretion in a proper manner and no interference is warranted. According to the learned counsel, it is perfectly lawful for a Magistrate to issue a search warrant when it considers the production of anything necessary for the purposes of any enquiry under the Code. He would contend that it is not incumbent for the learned Magistrate to wait until the evidence of prosecution has been recorded. 8. A brief reference to Section 93 (1) would be profitable to appreciate the contentions: “Section 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 in 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 **Crl.MC.No. 8672 of 2018** **6** 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) xxxx xxxx (3) xxxx xxxx” 9. As is evident from the wording of the section, it arms the jurisdictional Magistrate with very wide powers. Issuance of a search warrant is a very drastic step with serious consequences and it cannot be gainsaid that such drastic powers should not be exercised without fully appreciating the gravity of the step. It is for that reason, the words "reason to believe" is incorporated in the said section. This function being judicial, it necessarily follows that the Magistrate has to apply his mind judicially. 10. It is evident from the provision that clause (a) of subSection (1) requires, as a condition precedent, to the issue of a search warrant, that the court must have reason to believe that the person, against whom the search warrant is issued, is likely not to produce the document or thing in his possession as required by a summons or order under Section 91 or a requisition under Section 92(1) of the Code, served on him, or that he is not likely to produce it, should such summons or order or requisition be served. No such situation had arisen in the instant case. It does not appear from the order that the **Crl.MC.No. 8672 of 2018** **7** petitioners were called upon to produce the document and they had refused. Section 93(1)(b) comprehends a situation where a search warrant may be issued to procure a document or thing not known to the court to be in the possession of any person. In other words, a general search warrant may be issued to procure the document or thing and it can be recovered from any person who may be ultimately found in possession of it if it was not known to the court that the person from whose possession it was found, was in possession of it. The said provision has no application as it is evident from the application itself that the document was in the possession of the relevant office bearer of the Tennis Club. Under clause (c), a search warrant can be issued where the court considers that the purposes of any enquiry, trial or other proceeding under this Code will be served by a general search or inspection. A Magistrate must, under this provision, apply her mind to the question whether the purposes of any enquiry, trial or other proceeding under the Code will be served by a general search, and, unless there are materials before her, connecting the person against whom the warrant is applied for with the offences alleged, upon which it can come to an independent decision on the point, it has no power to issue a search warrant. I have no doubt in my mind that none of the situations contemplated in clauses (a) to (c) of Section 93(1) had arisen in the instant case. **Crl.MC.No. 8672 of 2018** **8** 11. There is yet another aspect of the matter. When the law requires the sanction of Magistrate before the issue of a search warrant, it means that the Magistrate should apply its mind to the facts. This fact should be discernible from the order passed. It can be argued that the provision does not contemplate recording of detailed reasons prior to the issuance of an order in view of the urgency of the situation. However, in a case of instant nature, wherein allegations are levelled against the officer bearers of a club for wrongly inducting a member against the provisions of the bye-laws, the learned Magistrate ought to have applied her mind and should have formed an opinion upon the materials placed before her. The “reasons to believe” which weighed in the mind of the Court to take such a drastic step should have been reflected in the order. 12. In **Assistant Commissioner, Commercial Tax** ## **Department, Works Contract and Leasing, Kota v. Shukla and** **Brothers** [(2010)4 SCC 785], it was held thus by the Supreme Court: “Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principles are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements. A judgment **Crl.MC.No. 8672 of 2018** **9** without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighed with the Court in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher Court in the event of challenge to that judgment.” 13. For the aforementioned reasons, I hold that the impugned order passed by the learned Magistrate cannot be sustained. The impugned order is set aside. The documents, which have been seized by the Commissioner from the Trivandrum Tennis Club as per the impugned order dated 6.12.2018, shall forthwith be released to the petitioners after obtaining proper acknowledgement. This petition will stand allowed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** DSV/16.3.19 //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 8672 of 2018** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE DECLARATION OF THE RESULTS FOR THE ELECTION.** **ANNEXURE II** **TRUE COPY OF THE MINUTES OF THE EXECUTIVE COMMITTEE HELD ON 11-07-2018.** **ANNEXURE III** **TRUE COPY OF THE NOTICE ISSUED BY ADV. ANAND A.B.** **ANNEXURE IV TRUE COPY OF THE ORDER DATED 06-12-2018 IN C.M.P 3740/2018 IN C.M.P 3647/2018 OF THIRUVANANTHAPURAM.** **ANNEXURE V CERTIFIED COPY OF THE COMPLAINT FILED UNDER SECTION 190 CR.PC AND NUMBERED AS C.M.P 3647/2018.** **ANNEXURE VI TRUE COPY OF THE PETITION FILED UNDER SECTION 93 CR.PC NUMBERED AS AGAINST C.M.P 3740/2018.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY// P.A.TO JUDGE**