Kar HC | Whether it is mandatory for issuance of a summons under S. 91 CrPC before issuance of a warrant under S. 93 CrPC? HC Answers

Karnataka High Court: Suraj Govindaraj J., dismissed the petition being devoid of merits.

The facts of the case are such that two 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, pursuant to which FIR was lodged under Sections 353, 143,147, 148, 333, 436, 427 read with 149 of Penal Code, 1860 i.e IPC, Section 4 of Prevention of Damage to Public Property Act, 1984 and Sections 15, 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967. During the course of investigation several persons were arrested and their voluntary statements recorded consequent to which search warrants were issued by the Sessions Court under Section 93 of Code of Criminal Procedure i.e. CrPC and searches were conducted thereby. Being aggrieved by this, instant petition was filed for quashing the said order.

Counsel for the petitioner submitted that it is mandatory for a notice under Section 91(1) CrPC to be issued before a warrant of search being issued. It was also submitted that a search warrant should be issued only when the Court has come to a conclusion that the incriminating articles could either be destroyed or done away with if the search warrant is not issued and the order must show details regarding such application of mind.

Counsel for the respondents submitted that the offences alleged are serious in nature as the offices of petitioner’s political organization were used for calling meeting and instigating the mob to indulge in violence. It was further submitted that the impugned order was passed after due perusal of statements of witnesses and other records hence the order is proper and correct.

The Court observed that a perusal of Section 91 CrPC read with Section 93 of Cr PC as a whole would mean that when Section 93 (1) (a) (b) (c) are qualified with the word ‘or’ after each of the said sub-clauses that would mean that they are in the alternate to each other and if any one of the requirements is satisfied, a search warrant can be issued.  Section 93 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.

The Court thus held that the instant case is covered by Section 93 (1) (c) instead of Section 93 (1) (a) and thus the search warrants issued under Section 93 CrPC is dehors and over and above the requirements under Section 91 (1) of CrPC and hence it is not required in all circumstances to issue a summons prior to issuance of search warrant and hence each warrant could be issued in terms of Section 93 (1) (c) without issuing a summon under Section 91 of the CrPC.

In view of the above, petition was dismissed.[Social Democratic Party of India v. State, 2021 SCC OnLine Kar 90, decided on 12-1-2021]


Arunima Bose, Editorial Assistant has put this story together

One comment

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    Inherent powers by in itself is limitless…furthering by answering it as no limits not advisable…a common interpretation suffice.

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