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Judgment
M. K. Mukherjee, C.J.—On March 24, 1992 Sri Mahabir Prasad Verma, District Inspector of Schools, Agra sent a missive to the Addl. District Magistrate (City), Agra (A.D.M., for short) pointing out that some book sellers at Agra city were selling books bearing the caption ''Vikas Guide Book'', meant for High School and Intermediate Examination, 1992 but on perusal thereof it appeared that they were guess papers and not guide books as expected questions of the above examinations and their answers were printed therein. He further pointed out that in the past it had been seen that such guide books/guess papers were used in large numbers in those examinations and if the books were permitted to be sold in the market. It would lead to violation of the provisions of the Utter Pradesh Public Examination (Prevention of Unfair Means) Second Ordinance, 1992 (Ordinance'', for short). He accordingly requested the A.D.M. to take necessary action to ensure strict compliance with the provisions of the Ordinance and to impose restriction upon the sale of those books.
On receipt of the above missive the A.D.M. directed the City Magistrate, Agra to take immediate action in accordance with law in consultation with authorities of the Education Department. Pursuant thereto the City Magistrate went to the premises of the Vikas Book Agency, the publishers of the books, on that very day along with some officers of the Education Department and some Police Officers and held a search. They found a large number of guide books guesspapers on different subjects meant for High School and Intermediate Examination lying in different rooms of the said premises. The search party collected all the books and, after storing them in one room, sealed the same. The City Magistrate then directed the officers of the Police and Educational Department to take necessary action in the matter according to law. He also sent a report to the A.D.M. detailing the above facts. Aggrieved by the above search and seizure, Vikas Book Agency and others filed this writ petition before this Court on March 25,1992.
It having been subsequently brought to the notice of the petitioners that on the basis of the selfsame search and seizure a First Information Report was lodged by the Director of Education, Agra, and on that information a case was registered by Loha Mandi Police Station, Agra, under paragraph 4 (b) of the Ordinance against them, they filed an application, praying for amendment of the writ petition to enable them to assail the first information report also and the prayer was allowed.
In assailing the search and seizure and the case registered against the petitioners, Mr. Verma, the learned Advocate appearing for them, submitted that paragraph 4 (b) of the Ordinance, for purported violation of which the above steps had been taken, had no manner of application to the facts of the instant case. He pointed out that if the contention of the prosecuting agency that publication of guide books/guess papers amounted to breach of paragraph 4(b) of the Ordinance was accepted, even publication of text books would come under the mischied of the above paragraph. In combating the above contention of Mr. Verma, the learned Chief Standing Counsel submitted that if the offending books were read between the lines, it would be crystal clear that they were printed and published with the uterior object of getting them distributed at the time of examination giving an impression that the questions selected and printed by the petitioners in their books were likely to be asked in the examinations.
The factual controversy, so raised, relating to the contents of the offending books need not be delved into and decided as the petition must succeed for failure on the part of the respondents to comply with statutory requirements while directing search and registering the F.I.R. against the petitioners.
As has already been noticed, the F.I.R. was preceded by and is founded upon the search and seizure made in the presence of the City Magistrate, Agra. While conducting the search the Magistrate has indubitably exercised his powers under Section 103 of the Code of Criminal Procedure (Code'', for short), which reads as under:
"Any Magistrate may direct a search to be made in his presence of any place for the search of which he is competent to issue a search warrant (Emphasis added)".
Now, the competence of a Court or Magistrate to issue warrant for search of any premises is provided for in Sections 93, 94 and 95 of the Code. Since Section 93 relates to the power of the courts to issue search warrants for the purposes of investigation, inquiry, trial or other proceeding under the Code, the same has no manner of application in the instant case. Similarly, Section 95, which relates to issuance of search warrants for seizure of any newspaper, book or document which contain any matter the publication of which is punishable under Sections 124A, 153A, 153B, 292, 293 or 295A of the Indian Penal Code, has no application as the facts of the instant case do not relate to any of the above offences. We have, therefore, to ascertain whether the City Magistrate was competent to issue warrant for the search of the premises of the petitioners under Section 94 of the Code and, for that matter, to direct a search to be made of the premises in his presence under Section 103 of the Code.
Subsection (1) of Section 94 of the Code, so far as it is relevant for our present purposes, reads as under:
"If a District Magistrate, SubDivisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorize any police officer above the rank of a constable
(a) to enter, with such assistance as may be required, such place,
(b) to search the same in the manner specified in the warrant.
(c) to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies,
(d).................
(e)................. (Emphasis supplied).
As has already been stated, in the missive of the District Inspector of Schools addressed to the A.D.M. and the report of the City Magistrate sent to the A.D.M. it has been pointed out that the books were violative of the provisions of the Ordinance and objectionable, respectively; and relying thereupon it was contended on behalf of the State that the City Magistrate was competent to direct search. The above attempt of the respondents to invoke Section 94 must be said to be a futile one as the objectionable articles for which a Magistrate is competent to issue a search warrant have been detailed in subsection (2) of Section 94 and they are:
"(a) counterfeit coin:
(b) pieces of metal made in contravention of the Metal Tokens Act, 1989 (I of 1989) or brought into India in contravention of any notification for the time being in force under Section 11 of the Customs Act, 1962 (52 of 1962).
(c) counterfeit currency note: counterfeit stamps;
(d) forged documents;
(e) false seals;
(f) obsence objects referred to in Section 292 of the Indian Penal Code (545 of 1860);
(g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f)."
From a cursory glance of the articles referred to above, it is patently clear that the Magistrate had no competence to issue a search warrant and, for that matter, to direct search under Section 103 of the Code in respect of the books in question, even if it is assumed that they were objectionable as contended by the respondents. Needless to say, it is not the case of the respondents that the books are stolen. It must, therefore, be said that the search and seizure in the instant case was illegal and without any jurisdiction.
We reach the same conclusion through a different route also. Under Section 94 of the Code a search warrant can be issued by a Magistrate if he has reasons to believe (emphasis added) that any place is used for deposit or sale of stolen property or for the deposit, sale or production of objectionable article. The Legislature in its wisdom has provided for the above safeguard obviously because a search infringes upon and invades the privacy of the owner or occupier of the premises to be searched and the seizure interferes with, though temporarily, the right to hold the premises searched and the articles seized. Therefore, before a search warrant is issued, it must be demonstrated that the Magistrate had applied his mind and formed a reasonable belief that the premises in question were required to be searched for the purposes mentioned in Section 94 of the Code. Reference in this connection may be made to the decision of the Supreme Court in the case of V.S. Kuttan Pillai v. Ramakrishnan, AIR 1980 SC185, wherein it was observed as follwos:
"Of course, issuance of a search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way by a laconic order. Issue of search warrant being in the discretion of the Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of granting the request. A clear application of mind by the learned Magistrate must be discernible in the order granting the search warrant."
While applying the above principle in the present case we find that the A.D.M. only issued a direction upon City Magistrate to inquire into the matter on receipt of the complaint from the District Inspector of Schools but did not direct issuance of a search warrant. It cannot, therefore, be said that he acted in terms of Section 94 of the Code. So far as the City Magistrate is concerned, we find that in his report sent to the A D. M. he has only mentioned that the officers of the Education Department found the books objectionable and there is nothing on record to indicate that he himself applied his mind or had any belief, much less reasonable, that the petitioner''s premises were used for deposit or sale of objectionable materials for which it was required to be searched. In other words, the search was conducted relying upon the satisfaction of the Officers of the Education Department, and not that of the A. D. M. or the City Magistrate.
Coming now to the first information report, we find that the same has been lodged by the Director of Education and pursuant thereto a case has been registered against the petitioner under paragraph 4 (b) of the Ordinance, Paragraph 4 (b) reads as follows:
"No person who is not lawfully authorized or permitted by virtue of his duties so to do shall, before the time fixed for distribution of question papers to examine at a public examination
(a)........................
(b) impart, or offer to impart, information which he knows or has reason to believe to be related to, or derived from, or to have a bearing upon such question papers."
The only allegation that has been made in the F.I.R. is that the guide books seized from the petitioners contained highly objectionable model guesspapers. The above allegation does not, by any stretch of imagination, contain any ingredient of the offence under paragraph 4 (b) of the ordinance to entitle the Police to register a case and investigate into the same. The learned Chief Standing Counsel, however, tried to justify, the merits of the F.I.R. by referring to the contents of the books and other materials, but then, law is now well settled that if the F.I.R. does not disclose any congnijable offence, the Polcie has no right to register a case and investigate into the same and this Court while exercising powers under Article 226 of the constitution can quash the same. We, therefore, find this to be a fit case to quash the F.I.R.
On the conclusions as above, we allow this writ petition and quash the F.I.R. and the seizure made by the City Magistrate, Agra, Let the seized books be returned forthwith to persons from whom the were seized. Writ Petition allowed.