Not Necessary To Issue Summons U/S 91 CrPC In All Circumstances Before issuing A Search Warrant: Karnataka High Court

Justice Suraj Govindaraj passed the order while dismissing a petition filed by Social Democratic Party of India (SDPI) challenging an order of the passed by the 44th Additional City Civil and Sessions Judge, Bangalore, issuing search warrants to search the offices of the party for conducting investigation in the Bengaluru riots case.

On August 11 and 12, 2020, there was vandalism and arson within the limits of D.G.Halli and K.G.Halli Police Stations. The said police stations were attacked on account of a blasphemous facebook post, which took an ugly turn allegedly on account of lack of timely intervention and action by the police.

During the course of investigation, the case registered with the DG Halli police station, has been taken over by the National Investigation Agency.

The party claimed that it has been targeted by the State government. The petitioner carries out empowerment of the deprived section of the society and has not indulged in any unlawful activity. The entire process resorted by the respondent is only to defame the petitioner.

Advocate Mohammed Tahir appearing for the petitioners argued that "A warrant of search would only be required to be issued if the Court came to a conclusion that the incriminating articles could either be destroyed or done away with if the search warrant is not issued, the

order of issuing a search warrant has to be detailed showing the application of mind of the said Court as to why the step of issuing a search warrant is taken since issuance of such a search warrant can have an adverse impact on the person whose premises has been searched."

The respondents opposed the petition saying "There is no mandatory requirement for issuance of notice under Section 91(1) of Cr.P.C. before issuance of a search warrant under Section 93 of Cr.P.C. The search which has been carried out has been so carried out in accordance with applicable law and procedure and on a search being carried out, several incriminating materials have been found in the premises of the petitioner."

Further it was said that "The mahazars which are sought to be quashed by the petitioner is with an intention to prevent the consideration of a valid and legitimate evidence by the Court. The present petition has been filed only to try and suppress the material evidence from the Court.

Counsel for NIA Prasanna Kumar, submitted that "The offences which are alleged to be committed are very serious in nature inasmuch as two police stations had been vandalised, several vehicles were burnt, there were group of more than two hundred to three hundred persons who attacked the police officers, burnt the police station, damaged the public property including government and public vehicles. All this was done at the instance of the office bearers of the petitioner."

He also said that "The petitioner's political organization which was made use for calling a meeting, instigating the mob to indulge in the violence and thereafter coordinated the violence, riots and arson resorted to.It is after considering the statements made by the witnesses that the search warrant came to be issued. If the search warrant was not issued, there was a danger of the incriminating article being removed and/or destroyed."

The court said:

Justice Govindaraj noted that having perused Section 93 of Cr.P.C.,the reliance placed by the petitioner on Section 93(1)(a) is not sustainable. The bench said "The entire provision would have to be read as a whole to arrive at the meaning and purport thereof more so when Section 93 (1)(a), (b) and (c) are qualified with the word 'or' after each of said sub-clauses. That would mean that they are in the alternate to each other and if any of the requirements are satisfied, a search warrant could be issued."

The court also said that "Section 93 of Cr.P.C. only provides for three different alternate circumstances. There is neither a priority in the circumstances nor a serial chain link in the circumstances.In that, if any one of the requirements is satisfied, the Court may issue a search warrant to search or inspect the premises.

Accordingly the court held "In the present case, a perusal of the order dated 31.08.2020 in relation to crime No.229/2020 and the order dated 12.08.2020 in relation to Crime No.195/2020 indicates that the Court has considered that most of the accused in connection with the case are office bearers of the petitioner, as per the information received, the weapons in connection with the crime would be available in the office of the petitioner and as such, a search warrant was issued."

It added "In view of the above, the reasoning of the Court and Court having appreciated the requirements and immediate need for issuance of a search warrant, I am of the considered opinion that the above matter would not come within the purview of Section 93 (1)(a) of Cr.P.C. but would come within the purview of Section 93(1)(c) of Cr.P.C. where the Court considers that for the purposes of any enquiry, trial or other proceeding be served by a general search or inspection, the court could issue such search warrants."

The court concluded by saying "Considering the said factors that the Court has issued the search warrants. For the purposes of Section 93(1)(c) of Cr.P.C., there is no requirement of issuing summons under Section 91(1) of Cr.P.C. prior to issuance of the search warrant. I am of the considered opinion that it is not in all cases that the summons have to be issued prior to issuance of a search warrant. Even a perusal of Section 93 (1)(a) of Cr.P.C. would indicate that if the Court were to come to a conclusion that the issuance of summons under Section 93 (1) or 92 (1) of Cr.P.C. would not result in the production of the said document or information, a search warrant could be issued. The procedure for issuance of search warrant under Section 93 of Cr.P.C. is dehors and over and above the requirements under Section 91(1) of Cr.P.C."

Case Details:-

Case Title: Social Democratic Party of India And State By CCB Police

Case No: WP 10760/2020

Date of Order: 12th day of January 2021.

Coram: Justice Surag Govindaraj

Appearance:

Advocate Mohammed Tahir for petitioner.

Advocate Namita Mahesh B G for R1

Advocate Prasanna Kumar for R2, R3.