Bombay High Court: A Division Bench of Sunil B. Shukre and Avinash G. Gharote, JJ. addressed a very pertinent issue of what is the proper procedure for execution of a search and seizure warrant when such warrant is sought to be executed outside of the local jurisdiction of the court issuing the warrant.
In the instant case, the petitioners were rice traders in Nagpur (Maharashtra). Their godowns in Nagpur were raided by the Karnataka Police under the authority a search and seizure warrant issued by the Judicial Magistrate, Gangavathi (Karnataka). A considerable number of rice bags of a particular brand were seized and taken away by the Karnataka Police from their godowns. Aggrieved, the petitioners approached the Bombay High Court.
Territorial jurisdiction of High Courts
The respondent-State of Karnataka took a preliminary objection that the Bombay High Court had no jurisdiction to entertain the instant petition as the entire cause of action including the registration of offences, investigation into the offences and pursuant issuance of search warrant arose in the State of Karnataka.
Refuting the submission, the Bombay High Court noted the search warrant (although issued in Gangavathi, Karnataka) was executed at two places in Nagpur, Maharashtra, and therefore part of the cause of action arose within the territorial jurisdiction of the Bombay High Court.
After this, the Court went on to state the law regarding the power and authority of a High Court to issue directions, orders or writs to any Government, Authority or any person. It said that such power includes the power to issue directions, orders or writs to a Government or Authority or a person situated outside its territorial jurisdiction, if the cause of action for filing a petition under Article 226 of the Constitution arises, wholly or in part, within its territorial jurisdiction. This power of the High Court originates from clause (2) of Article 226 of the Constitution.
Argument of alternate remedy
The State of Karnataka next contended that the petitioners had an alternate remedy under Section 451 CrPC (Order for custody and disposal of property pending trial in certain cases) and, therefore, they should knock at the doors of criminal courts in Karnataka. As such, it was argued that the Bombay High Court need not hear the petitioners.
To this the Court answered that the question raised here was about jurisdiction of the Bombay High Court, which it was found to exist. Then it would follow that just because an application under Section 451 can be made before Gangavathi Court (in Karnataka) and all the objections taken by petitioners can be raised before a court in Karnataka, such possibility still does not divest the Bombay High Court of its jurisdiction, which comes from law and not by choice of the parties.
“The law is neither dependent on choice of parties nor gets its validity from acts of the parties, rather it makes the choice and acts of the parties meaningful.”
Periphery within which prayers could be entertained
The Court then considered and determined the periphery within which it would confine itself while entertaining the instant petition as the major part of the cause of action denoted by registration and investigation of the crime arose in Karnataka.
The petition was grounded in two objections: (i) The first referred to absence of any criminality of the petitioners making their entitlement to custody of the goods seized sound; (ii) The second objection emphisesed upon the procedural aspect.
The High Court noted that the first objection was merit-oriented and though it had jurisdiction to hear it, but would not do so in its discretion. Reason being that court in Karnataka is better placed to consider and decide such objection, with the registration of the crime and its investigation being done in Karnataka. Then if an application for interim custody of goods is to be granted under Section 451 CrPC, then not only the merits of the claim require consideration but other relevant factors such as possibility and practicability of goods being conveniently produced in Court during trial, if directed, conditions to be imposed and so on, also need to be borne in mind.
But as for the claim originating from the procedural aspects, the Bombay High Court found itself to be eminently suited to hear it as the part of the cause of action arising from execution of the warrant issued by Gangavathi Court had sprouted up within the territorial jurisdiction of the Bombay High Court, which was evident from seizure of the goods from places situated within the limits of Nagpur.
Procedural requirements while executing a search warrant in different territory
Petitioners submitted that procedure prescribed in Section 101 (Disposal of things found in search beyond jurisdiction) and Section 105 (Reciprocal arrangements regarding processes) of CrPC being mandatory had not been followed by Karnataka Police while executing the search warrant and, therefore, the seizure of rice bags had been vitiated thereby entitling the petitioners to have the seized goods restored to their custody. Sections 105 and Section 101 lay down an elaborate procedure for service or execution of summons or arrest warrant or search warrant issued by a court at a place situated outside its territorial jurisdiction.
The question raised before the Court was: Whether procedure regarding search and seizure prescribed in Sections 105 and 101 CrPC is mandatory in nature?
Adopting a holistic approach, the Court concluded the position of law which emerges from various provisions of CrPC that whenever a search warrant is to be executed at a place situated beyond the local limits of jurisdiction of a Court, the Court would have three options available before it and by electing one of the options, it may cause the search warrant executed at a place beyond its territorial jurisdiction:
(i) The first option is of sending the warrant in duplicate to the Presiding Officer of the other Court within whose jurisdiction the place where search warrant is to be executed is situated and the procedure as regards this option is laid down in Section 105.
(ii) The second option is, as per the provisions contained in Section 78, empowering the Court to forward the search warrant by post or otherwise to Executive Magistrate or Superintendent of Police or Commissioner of Police, who shall cause the warrant to be executed, in the manner provided therein.
(ii) The third option is of directing the police officer to execute the search warrant, by following the procedure prescribed in Section 79.
Central theme of such elaborate mechanism is of expeditious and effective execution of search warrant within the four corners of law. The safeguards embedded are in the nature of Executive Magistrate or the Superintendent of Police or the Commissioner of Police or Police Station In-charge endorsing his name on the search warrant before its execution (Section 78 and 79); and the Presiding Officer of a Court causing the search warrant to be executed within his jurisdiction (Section 105), by subjecting it, as far as possible, to the procedure of Section 101.
Section 105 CrPC not mandatory
Discussing the above, the Court stated that procedure prescribed under Section 105 is not the only one which can be resorted to in such matters and that other options are also available. Therefore, the Court held that the words “may send such summons or warrant in duplicate by post or otherwise, to the Presiding Officer of that Court” used in Section 105(1)(i) cannot be understood as having any prescriptive or mandatory form. The word “may” used here, therefore, cannot be read as signifying a command which inheres in the verb “shall”. If any mandatory form is clothed to “may”, it would render the other modes available for execution of warrant redundant. The Magistrate would be left with no option but to get his warrant executed only by procedure of Section 105. The Magistrate would feel tied down to only Section 105 procedure, inspite of availability of other options. To prevent any such constriction of the power of the Magistrate from taking place the legislature intentionally employed the word “may” and left it to the discretion of the Magistrate to choose between the three modes of execution of warrant.
Section 101 CrPC mandatory with exceptions
The High Court noted that Section 101 is an omnipotent provision, it being the only of its kind which deals with disposal of things found in the search, whether under Section 78 or Section 79 or Section 105 and so it has universal application to all searches made by resorting to any of the three modes of the execution of warrants, barring the power of the Magistrate to depart from it in a rare case under Section 105.
Language of Section 101 has an imperative character. This is evident from the use of an expression indicative of a mandate therein. The mandate is expressed in words “such things, together with the list of same prepared under the provisions hereinafter contained, shall be immediately taken before the Court”. Uses of the modal verb “shall” here signifies nothing but command of the legislature which must be followed. The command is that the things found in the search must be taken before the Court issuing the warrant but, if such Court is situated farther than the Court within whose local jurisdiction the things are found, the things are required to be taken before such nearer Court. When the things are produced before the nearest Magistrate having jurisdiction over the place searched, along with list of the articles found, such Magistrate is required to make an order authorising the things to be taken to the Court issuing the warrant, unless he finds a good cause to the contrary.
Explaining the scope of exception to the command in Section 101, the Court stated that Section 105(2)(d)(ii), lays down that where a search warrant has been executed, things found in the search shall, so far as possible, be dealt with in accordance with the procedure prescribed by Section 101. This would suggest that ordinarily Section 101 procedure should be followed while executing the search warrant in accordance with the procedure prescribed by Section 105, but in exceptional cases, such procedure, in so far as it relates to producing the seized articles before the nearest Magistrate, can be dispensed with by the Court concerned depending on the fact situation of each case. The reason being that Section 105 procedure is a Court-monitored mode of execution of the search warrant, which is not so in case of the modes referred to in Sections 78 and 79.
In view of above, it was answered that Section 101 procedure governing the disposal of things found in search beyond jurisdiction is mandatory when the modes of execution of warrant laid down in Sections 78 and 79 are resorted to and without any exception. Further, when the mode of execution of warrant referred to in Section 105 is taken recourse to, ordinarily the procedure prescribed by Section 101 for production of seized articles must be followed and it is only in exceptional cases when warranted by fact situation of a particular case that departure therefrom, for reasons to be recorded in writing, can be permitted to be made by the Court getting the warrant executed and that too upon prescription of suitable conditions and adequate safeguards to ensure misuse of powers by the executing officer.
Decision in the instant case
Having understood the law governing the subject, the High Court noted that the Karnataka Police obtained the authorisation of the officer in-charge of the jurisdictional police sttion and executed the search warrant at two placed in Nagpur, Maharashtra. This was as per the procedure laid down in Section 79 CrPC. But, thereafter, the procedure governing disposal of things found in the search as prescribed by Section 101 was not followed by the Karnataka Police, who executed the warrant.
Having already found that procedure contained in Section 101 CrPC, in so far as it relates to Sections 78 and 79, is mandatory and no exception to it and no departure from it are permitted, the Court held that the entire search and seizure operation was vitiated and the seizure of rice bags was illegal. The respondents were directed to restore the seized rice bags to the petitioners. [Angel Click v. State of Karnataka, 2021 SCC OnLine Bom 682, decided on 7-5-2021]
