Login
  • Bookmark
  • PDF
  • Share
  • CaseIQ

Mahomed Tahir, In Re

Bombay High Court
Oct 13, 1933
Important Paras
Please sign up to view Important Paras.
Smart Summary (Beta)

Structured Summary of Opinion — Broomfield, J.

Factual and Procedural Background

The petitioner is one of the partners in the firm Messrs Soho House, manufacturers' representatives carrying on business in Bombay and other ports. On 15 August 1933 the Chief Presidency Magistrate issued a search warrant under Section 96 of the Code of Criminal Procedure (Cr PC), on the basis of a letter addressed to the Magistrate by the Collector of Customs, Bombay, signed for the Collector by Mr. F. J. Karaka, Assistant Collector of Customs.

The premises of the firm were searched pursuant to that warrant; about 139 documents (including, according to the petitioner, the firm's books) were seized and handed over to the Customs Authorities. Mr. Karaka presented the letter to the Magistrate and was examined on solemn affirmation before the warrant was issued. On 16 August 1933 the Magistrate ordered that "All the documents and papers seized under the search warrant [be] given in charge of the Customs Authorities for their investigation."

The petitioner applied for return of the documents, alleging that the order under Section 96 was ultra vires. That application was refused by the acting Chief Presidency Magistrate on 5 September 1933, on the authority of Clarke v. Brajendra Kishore. The petitioner sought revision of that refusal. It was noted in the opinion that, at the time of the warrant and at the time of the refusal on 5 September, no complaint of any offence had been made to the police. The petitioner was arrested on 15 September 1933, but as of the date of the opinion there had been no formal complaint or charge sheet presented to the Magistrate (the charge sheet was said to be nearly ready).

Legal Issues Presented

  1. Whether the Magistrate validly issued a search warrant under Section 96 of the Cr PC when he had not taken cognizance of any offence and no proceeding under the Code was pending before him.
  2. Whether the documents seized were required for "investigation, inquiry or trial or other proceeding under this Code" — i.e., whether the purpose for which the warrant was issued was an inquiry "under the Code."
  3. Whether the Customs Authorities are authorized to conduct investigations "under the Code" in the manner contemplated by Sections 94 and 96 of the Cr PC.
  4. Whether the Magistrate complied with the terms of Section 96(1) — specifically whether he had reason to believe that the documents would not be produced in response to a summons under Section 94.
  5. Whether the material presented to the Magistrate (a letter alleging hearsay information) constituted information upon which a judicial finding could be made that production of the documents was necessary or desirable for purposes under Section 94.

Arguments of the Parties

Petitioner's Arguments

  • The learned counsel for the petitioner (and the petition itself) assumed, for part of the argument, that Section 96 is governed by Section 94 and that a Magistrate could not issue a warrant except in cases where he might first have issued a summons under Section 94 — i.e., a warrant should only be issued if the Magistrate had reason to believe a summons would be useless.
  • The petition urged that the learned Magistrate had not taken cognizance of any offence and that the documents seized were not required for any investigation, inquiry, trial or other proceeding under the Code before him.
  • The petition contended that the Customs Authorities were not authorized to conduct the investigation under the Cr PC as contemplated by Sections 94 and 96, and that the material before the Magistrate was merely hearsay and did not state facts constituting any offence.

Government Pleader's Arguments

  • The learned Government Pleader accepted (and the court records this concession) that the Customs Authorities, though possessing powers under Section 29 of the Sea Customs Act to compel production of documents for fiscal purposes, had no authority to investigate the offences specified in the letter under the Cr PC.
  • The Government Pleader argued that the warrant in this case must be taken to have been issued under Clause (3) of Section 96(1) (the clause permitting a search 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").
  • The learned Government Pleader agreed that the Magistrate's order directing the documents to be handed over to the Customs Authorities could not be supported; the proper procedure would have been to retain the documents in Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Clarke v. Brajendra Kishore Roy Chowdhury Consideration of whether a Magistrate may issue a search warrant before any proceedings are initiated; reference to the form in Schedule 5 and Lord Macnaghten's observation that the form contemplates issue of a warrant "in view of an 'inquiry about to be made'." The court found that only a short passage of the judgment applied to the present facts. The court accepted that the form and the observations in Clarke negate the contention that there must necessarily be a proceeding actually pending before the Magistrate when the warrant is issued. However, Clarke did not validate the warrant here because the present warrant was issued for the purposes of an inquiry by the Customs Authorities which was not an inquiry under the Code.
In re Harilal Buch Held in the Bombay case that a Magistrate cannot issue a warrant under Section 96 unless there is a proceeding under the Code pending before him, of which he has taken cognizance under Section 191 (now Section 190). The court said this authority must be read subject to the Privy Council's observations in Clarke. The court distinguished Harilal Buch on its facts (telegram from a Native State) and noted here the Magistrate had a sworn statement from the Assistant Collector. Nonetheless, the court treated Harilal Buch as an authority against the validity of the Magistrate's order in the present case.
Pratt v. Emperor Consideration of warrants where the form referred to an inquiry then being made (not about to be made), and the inquiry was by an authority appointed ad hoc by Government, not acting under the Code. The court distinguished Pratt on its facts and noted that much turned there on the form of the warrant and the nature of the inquiry. Pratt was treated as an authority against the validity of the Magistrate's order in the present case.

Court's Reasoning and Analysis

The court began by analyzing the relationship between Sections 94 and 96 of the Cr PC. It recognized that while the first two clauses of Section 96(1) clearly relate back to Section 94 (summons procedure), Clause (3) — permitting a search "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" — appears to be independent of Section 94.

The learned Government Pleader's concession that the warrant should be taken to have been issued under Clause (3) of Section 96(1) was accepted as a proper characterization of the warrant. The court identified the central legal question as whether the Magistrate in fact "considered or had legal grounds for considering" that issuing the warrant would serve the purposes of an inquiry, trial, or other proceeding "under the Code" — placing special emphasis on the words "under the Code."

The court noted and accepted the Government Pleader's concession that the Customs Authorities, although having powers under Section 29 of the Sea Customs Act for fiscal purposes, had no authority to investigate the offences alleged in the letter as proceedings under the Code. The court further recorded that the Magistrate's order of 16 August explicitly directed that the documents be handed to the Customs Authorities "for their investigation," and therefore the only reasonable conclusion was that the warrant had been issued for the purpose of a Customs inquiry.

Because the Customs inquiry was not "an inquiry under the Code," the court concluded that issuance of the warrant could not be justified by Clause (3) of Section 96(1). The court examined the authorities relied on by the Magistrate and the Government Pleader:

  • Clarke v. Brajendra Kishore was considered but distinguished on facts; only a limited passage was applicable and its observations and the form in the Schedule negated the absolute necessity of having a proceeding pending, but that did not validate a warrant issued for an inquiry not under the Code.
  • In re Harilal Buch was a Bombay decision holding that a warrant under Section 96 requires a pending proceeding under the Code; the court said Harilal Buch must be read subject to Clarke and was distinguishable on its facts, but nonetheless was an authority against the present order.
  • Pratt v. Emperor was also distinguished on factual grounds; it was relied upon by the petitioner as authority against the validity of the Magistrate's order.

Taking these points together, and concluding that the documents had been obtained for the purposes of a Customs inquiry (not an inquiry under the Cr PC), the court held that the possession of the documents had been obtained by illegal process.

Holding and Implications

ORDER SET ASIDE

Holding: The court set aside the relevant orders of the learned Magistrate (including the order handing the seized documents to the Customs Authorities) and directed that the documents be returned to the petitioner.

Implications: The direct effect of the decision is that the documents seized under the warrant and delivered to the Customs Authorities must be returned to the petitioner because their possession was obtained by an illegal process. The opinion does not purport to establish a broad new precedent beyond its interpretation that Clause (3) of Section 96(1) authorizes search warrants for inquiries only when those inquiries are "under the Code," and thus a warrant issued to serve a non-Code inquiry (here, a Customs fiscal investigation) was not justified. The opinion treats earlier authorities as distinguishable or as being against the validity of the Magistrate's order in this case rather than as supporting it.

K.S

Order set aside.

Show all summary ...

Broomfield, J.:— This is an application for revision of an order passed by the acting Chief Presidency Magistrate on 5th September 1933, refusing the petitioner's application for the return of certain documents seized under a search warrant issued by the Court on 15th August 1933. The petitioner is one of the partners in a firm, Messrs Soho House, manufacturers' representatives doing business in Bombay and other ports. The premises of the firm were searched by order of the Chief Presidency Magistrate on 15th August 1933, and a large number of books and files belonging to the firm were seized and handed over to the Customs-Authorities. A warrant was issued under Section 96 of the Cr PC, on the strength of a letter addressed to the Chief Presidency Magistrate by the Collector of Customs, Bombay, and signed for the Collector of Customs by Mr. F.J Karaka, Assistant Collector of Customs. The letter is as follows:

“I have the honour to state that I have received information from the Collector of Customs, Madras making it reasonably certain that the proprietors, Mr. M. Tahir Khan, Mr. K.M Idrits Khan, Mr. M. Liaqat Khan of Messrs Soho House, Lohar Chawl, Bombay No. 2, carrying on busidess at Vithal Sayana Buildings, Lohar Chawl, Bombay No. 2, have by means of false declarations in their Customs Bills of Entry and production of false invoices, defrauded Government revenue in respect of the duty payable on consignments of goods imported by them at Bombay and Madras.”

“As the proprietors of the firm have thereby committed an offence punishable under Section 167(72) of the Sea Customs Act and S. 417, IPC I have to request yon, with reference to the provisions of section 96 of the Cr PC, to issue a search warrant for the search of the following premises and for the seizure of any goods, documents or correspondence which may be relevant to the investigation of the offence:”

2. Soho House, Vithal Sayana Buildings, Lohar Chawl, Bombay.

“I am deputing Mr. P.M Khambatta, Principal Appraiser, Bombay Customs House, to conduct the search and shall be obliged if you will kindly direct that any goods or documents seized by him be forwarded for the production before me.”

3. It appears that the letter was presented to the Magistrate by Mr. Karaka himself who was examined by the Magistrate on solemn affirmation before he issued a warrant. The warrant was issued to an officer of police who searched the premises and took possession of about 139 documents including, according to the petitioner, the books of the firm as pointed out by an Appraiser of the Customs Department who was present at the search. After these documents were produced in Court the Magistrate made this order on 16th August 1933:

“All the documents and papers seized under the search warrant to be given in charge of the Customs Authorities for their investigation.”

4. The warrant which was in the form prescribed by the Code of Criminal Procedure stated that whereas information had been laid before the Magistrate of the commission of the offence under Section 167(72) of the Sea Customs Act, and S. 417, I.P.C, by so and so (here the names of the partners in, the petitioner's firm were given) and it has been made to appear that the production of goods, documents, or correspondence which may be relevant to the investigation of this offence is essential to the inquiry about to be made into the said offence the police-officer was authorised to search for the said documents. Subsequently the petitioner applied for return of the documents alleging that the order under S. 96 was ultra vires. This application was refused by the Magistrate on 5th September 1933, on the authority of Clarke v. Brajendra Kishore (1). At the time of the issue of the warrant and even at the time of the application which was rejected on 5th September no complaint of any offence had been made to the police. On 15th, September 1933, the petitioner was arrested, but even now (here has been no formal complaint and no charge sheet has been submitted to the Magistrate, although we are informed that the charge sheet is now nearly ready. Section 94(1) of the Cr PC, provides that whenever any Court considers that the production, of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons. S. 96(1) provides that where any Court has reason to believe that a, person to whom a summons or order under S. 94 has been or might be addressed, will not or would not produce the document or thing as required by such summons or where such document or thing is not known to the Court to be in the possession of any person, or 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.

5. In this revision petition the following points have been urged against the orders of the Chief Presidency Magistrate: (1) That the learned Magistrate had not taken cognizance of any offence and the documents seized were not required for investigation, inquiry or trial or other proceedings under the Code of Criminal Procedure before him. (2) That the Customs Authorities are not authorized to conduct the investigation under the Code of Criminal Procedure as contemplated by S. 96 read with Section 94 of the Cr PC. (3) That the learned Magistrate has not complied with the terms of Section 96 of the Cr PC, in that it does not appear that he had reason to believe that the documents in question would not be produced in response to an order under section 94 of the cr pc. (4) That there was no information before the learned Magistrate upon which he could come to a judicial finding that the production of the said documents was necessary or desirable for the purposes mentioned in S. 94. (5) That the document upon which the learned Magistrate was pleased to take action is a class of document unknown to the Code of Criminal Procedure. It is merely a request for the issue of a search warrant coupled with an allegation of the receipt of hearsay information without stating the facts which constitute any offence.

6. It is assumed in the petition, and the learned counsel who appeared for the petitioner has also assumed for the purposes of part of his argument, that S. 96 is governed by S. 94, that a Magistrate can never issue a warrant except in cases in which he might first have issued a summons under S. 94, and he can only do so if he has reason to believe that a summons would be useless. But though the first two clauses of S. 96(1) obviously relate back to S. 94, Clause (3),

“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.”

apparently does not. It is independent of the provisions of S. 94. The learned Government Pleader says. I think rightly, that the warrant in this case must be taken to have been issued under Cl. 3, and it is on the construction of that clause that the legality of the issue of the warrant depends. The real point in issue is, in my opinion, whether the Magistrate in fact considered or had legal grounds for considering that the issue of the warrant would serve the purposes of an inquiry, trial or other proceeding under the Code, and the special emphasis in the present case is on the words “under the Code.”

7. It is conceded by the learned Government Pleader that the Customs Authorities, although they have ample power under Section 29 of the Sea Customs Act, to compel the production of documents for fiscal purposes, had no authority to investigate the offences specified in the letter addressed to the Magistrate or the further offence of cheating which we understand is to be included in the charge sheet. The former offence indeed being non-cognizable could not even be investigated by the police without an order from the Magistrate (see S. 155 of the Code). It has also been conceded that the Magistrate's order directing the documents seized to be handed over to the Customs Authorities cannot be supported. The proper procedure, it is suggested, would have been to retain the documents in Court. That would have been a somewhat futile proceeding, since it was the Customs Authorities who wanted the documents, and if they were not to have them it is difficult to see what object was to be gained by issuing the warrant. However that may be, what actually happened was that the Magistrate ordered the documents to be handed over to the Customs Authorities, and in their custody apparently they still remain. The Magistrate's order of 16th August specified in so many words that all the documents and papers seized under the warrant were to be handed over to the Customs Authorities for their investigation, and in view of that order, I think, the only possible conclusion is that was the purpose for which the warrant was issued. But the inquiry which the Customs Authorities were making was not an inquiry under the Code. Therefore the issue of the warrant was not justified by the terms of Cl. (3), S. 96. Turning now to the authorities, the learned Magistrate and the learned Government Pleader have relied on Clarke v. Brajendra Kishore Roy Chowdhury . The facts in that case differed completely from those with which we are concerned and the decision turned for the most part upon considerations which are entirely absent here. There is only one short passage in the judgment of their Lordships which can be said to have any application at all. At p. 965 of the report Lord Macnaghten, who delivered the judgment, referred to the opinion of Harrington, J., which was as follows (p. 965):

“In my opinion S. 96 only authorises the Magistrate to issue a search-warrant when sitting as a Court, i.e, when some proceeding under the Code has been initiated before him. And this view is strengthened by the form of the search-warrant given in Sch. 5 which recites that information has been laid or complaint has been made.”

8. Lord Macnaghten's comment on this was (p. 965):

“If his Lordship had read to the end of the form in Sch. 5 he would have seen that it disposes of his theory altogether. The form contemplates the issue of a search warrant before any proceedings of any kind are initiated and in view of an ‘inquiry about to be made’.”

9. These observations and the form of warrant prescribed in the schedule do, I think, negative Mr. Carden Noad's contention that there must necessarily be a proceeding actually pending before the Magistrate at the time he issues the warrant. A warrant may be issued for the purposes of an inquiry about to be made, provided it is an inquiry under the Code, but not for the purpose of an inquiry either being made or about to be made otherwise than under the Code. If I had been able to accept the learned Government Pleader's argument that this warrant was issued for the purposes of a police investigation to be followed in the ordinary course by proceedings before the Magistrate himself, I should not have been prepared to say that the order was illegal. But the facts show that the warrant was issued for the purposes of an inquiry by the Customs Authorities into non-cognizable offences.

10. Mr. Carden Noad has relied on In re Harilal Buch (2) and Pratt v. Emperor (3).

11. In the Bombay case it was held that a Magistrate cannot issue a warrant under S. 96 unless there is a proceeding under the Code pending before him, of which he has taken cognizance under S. 191, which is now S. 190 of the Code. This case must be read subject to the observations of their Lordships of the Privy Council in Clarke v. Brajendra Kishore Roy . Moreover, it can be distinguished on the ground that the warrant there was issued merely on the strength of a telegram received from the authorities in a Native State, whereas here the Magistrate had the sworn statement of the Assistant Collector, Mr. Karaka, who, as appears from an affidavit put in before us, had supplied the Magistrate with more or less definite information in support of his application. The case in Pratt v. Emperor can also be distinguished. A great deal depended there on the form of the warrant, which referred to an inquiry then being made, not about to be made, and the inquiry then being made was one by an authority appointed ad hoc by Government, and not acting under the Code. However whether these are good authorities or not, they are authorities against the validity of the Magistrate's order in this case and cannot possibly be invoked in support of it. There is nothing therefore in the cases cited inconsistent with the view which the language of S. 96(3) itself suggests as the correct one. As we are of opinion that the possession of these documents has been obtained by illegal process, we must set aside the relevant orders of the learned Magistrate and direct that the documents be returned to the petitioner.

K.S

12. Order set aside.