Sidhesh K v. Impresario Event Management India Limited and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946** **CRL.MC NO. 3538 OF 2015** **AGAINST THE ORDER/JUDGMENT DATED 07.04.2015 IN CMP NO.1 OF 2015 OF JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM** ## **PETITIONER/RESPONDENT:** **SIDHESH.K** **S/O SACHINDRA BABU, KANDIYOIL, NOW RESIDING AT 7C, VIJAYA GLIMPSES, JAWAJAR NAGAR, KADAVANTHRA, KOCHI - 682 020** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/PETITIONER & STATE:** - **1 M/S.IMPRESARIO EVENT MANAGEMENT INDIA LIMITED, HAVING REGISTERED OFFICE AT 2ND FLOOR, GNADHI NAGAR COMPLEX, G.C.D. SHOPPING COMPLEX, KADAVANTHARA, KOCHI 682 020, REPRESENTED BY ITS MANAGING DIRECTOR, HAREESH BABU, S/O P.K. BAHBULEYAN** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKUKALM, KOCHI - 682 031** **BY ADVS. SMT.G.ASHWINI SMT.GISA SUSAN THOMAS SMT.K.S.SHALEEJA SRI.SANGEETHARAJ N.R., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.3538 of 2015 2 **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.3538 of 2015 ---------------------------------------------Dated this the 25[th] day of July, 2024** ## **O R D E R** This Criminal Miscellaneous Case is filed against Annexure II order dated 07.04.2015 passed by the Judicial First Class Magistrate Court-VIII, Ernakulam in C.M.P.No.1/2015. 2. The above petition is filed by the 1[st] respondent herein under Section 94 of the Cr.P.C. to issue a search warrant to conduct search at the residential premises of the petitioner. The learned Magistrate allowed the same. Aggrieved by the same, this Crl.M.C is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Crl.M.C. No.3538 of 2015 3 4. The short point raised by the petitioner is that the order passed by the Judicial First Class Magistrate Court-VIII, Ernakulam as evident by Annexure II is unsustainable because it is not in accordance with the procedure established by law. The counsel who appeared for the petitioner also relied on the judgment of this Court in **Gangadharan v. Chellappan** [1985 KHC 265] in which this Court explained the procedure to be followed, if an application under Section 94 of the Cr.P.C is filed. Counsel for the petitioner submitted that, in the light of the principles laid down in the above judgment, the impugned order is unsustainable. 5. After hearing the counsel appearing for the petitioner and the also going through the dictum laid down by this Court in **Gangadharan** 's case (supra), I think there is force in the argument of the petitioner. This Court in **Gangadharan** 's case (supra) explained Crl.M.C. No.3538 of 2015 4 the procedure to be followed in an application filed under Section 94 of the Cr.P.C. It will be better to extract the relevant portion of the above judgment: “5. In the applicability of S.94, certain conditions are necessary. First of all, the Magistrate must have the information. Secondly, he must conduct such enquiry as he thinks necessary. On the basis of such an enquiry, he must have reason to believe that any place is used for the disposal of stolen property. The order must show that he applied his mind. In this case, at the best, the affidavit could be taken as evidence of the fact that the Magistrate had the information. In that connection also, the affidavit does not supply the full information that is required under S.94. One of the components of the information required under S.94 is that the place is used for the deposit of stolen property. That part of information is lacking in this case. The other two conditions namely, the conduct of an enquiry as the Magistrate thinks fit and the reason to believe that any place is used for deposit of stolen property are not at all satisfied in this case. On the information, no enquiry was admittedly conducted. The Magistrate gets jurisdiction to issue an order for search only after making such enquiry as he thinks necessary. The Legislature has in its wisdom used such a safeguard in order to see that the provision is not Crl.M.C. No.3538 of 2015 5 abused or misused at the hands of the dishonest litigants. Without conducting an enquiry, the Magistrate cannot get the satisfaction on which he has to act. In an action having adverse reaction on the affected person, the Magistrate is expected to act only after getting reasonable belief. To pass an order, without an enquiry and satisfaction, may not be proper exercise of the jurisdiction. 9. The Magistrate is not having an unfettered discretion to issue search warrant. The order cannot be arbitrary. An order without the necessary application of mind is illegal. An order for search cannot be given for the mere asking. While ordering search, the Magistrate is exercising a judicial function. The exercise of the discretion must be judicial. In Melicio Fernandez v. Mohan (AIR 1966 Goa, Daman and Diu 23) a Special Bench of the High Court had occasion to consider an identical question. In that case it was held that in such cases, the Magistrate is not having unfettered discretion and discretion must be sound and guided by the provisions of law. Instead of ordering search warrant under S.94, the Magistrate is also having the jurisdiction to order an investigation by the police to satisfy himself that there are reasons to believe that the allegation is correct. In that decision it was observed: "It may be stated that the words "reason to believe" coupled with other words contemplate an objective Crl.M.C. No.3538 of 2015 6 determination based on intelligent care and deliberation involving judicial review as distinguished from a purely subjective consideration. This function being judicial, it necessarily follows that the Magistrate has to apply his mind judicially." It follows that it is not the subjective satisfaction of the Magistrate, but the satisfaction must be objective. The satisfaction in justiciable and therefore reasons in support of the satisfaction must be contained in the order itself in order to ascertain whether the Magistrate, who issued the order had such satisfaction. In that decision it was further held: "When a Magistrate issues a search warrant be acts judicially and cannot be deemed to be acting like a rubber stamp. He must retain ultimate responsibility for seeing that the search warrant is not abused."” 6. The learned Magistrate in this case considered Annexure I petition even without an affidavit. Even in an application with an affidavit, an order under Section 94 Cr.P.C can not be passed in the light of the dictum laid down in **Gangadharan** 's case (supra). An enquiry is also mandatory as per the above decision. No such enquiry is seen conducted by the learned Magistrate. Therefore, I Crl.M.C. No.3538 of 2015 7 am of the considered opinion that the impugned order is unsustainable. Therefore, the same is to be set aside. Accordingly, this Criminal Miscellaneous Case is allowed. The order dated 07.04.2015 passed by the Judicial First Class Magistrate Court-VIII, Ernakulam in C.M.P.No.1/2015 is quashed. _Sd/-_ **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C. No.3538 of 2015 8 ## **APPENDIX OF CRL.MC 3538/2015** ## **PETITIONER ANNEXURES** **ANNEXURE A1 TRUE COPY OF THEPETITION IN C.M.P NO 1/15 FILED BY THE 1ST RESPONDENT BEFOE THEJUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM DATED 26/3/15** **ANNEXURE A2 CERTIFIED COPY FO THE ORDER DATED 7/4/2015 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT -VIII, ERNAKULAM IN C.M.P NO 1/15** **ANNEXURE A3 TRUE COPY OF THE SEARCH LIST DATED 21/5/15** **ANNEXURE A4 TRUE COPY OF NOTICE DATED 12/2/15** **ANNEXURE A5 TRUE COPY OF REPLY DATED 10/3/15** **ANNEXURE A6 TRUE COPY OF THE DUBAI COURT CASE CERTIFICATE** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE**