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Criminal Revision No. 644 of 1968, decided on 16th January 1969.

Ss. 96 & 98 read with S. 537‑Search warrant‑Application of Ss. 96 & 98‑No enquiry needed for making an order under S. 96 or S. 98‑Magistrate under S. 96 only required to act on information of commission or suspected commission of an offence and before issuing search warrants under S. 98, get satisfied on receipt of such information that a particular place has been used for deposit or sale of stolen property‑Non‑examination of complainant or failure to make preliminary enquiry‑Not material for purpose of search warrant and cannot defeat purpose of S. 98 ‑Such failure at best irregularity curable under S. 537.

A careful perusal of sections 96 and 98 of the Code of Criminal Procedure will show that no enquiry need be made for an order under section 96 and for an order under section 98. All that is required in the case of section 96, Cr. P. C. is that the Magistrate should act on information of the commission or suspected commission of an offence, if it is considered essential to the enquiry etc. For application of section 98, Cr. P. C. it has only been stated that the Magistrate should try to get satisfied on receipt of the information before issuing the warrant. It is thus clear that no proceeding or enquiry for the offence need be pending in either case: Suffice to say that in the case of section 98, the Magistrate is only to be satisfied that a particular place has been used for deposit or sale of stolen property before he issues the search warrant.

In the instant case, the specific allegations were that the parties were the joint owners of the truck but the petitioner had taken away the same, and kept it confined in his house an 't was also trying to remove its valuable parts. From this it follows that the truck was out of control and possession of one partner and the other partner kept it confined in his house without the consent of the former. The latter was also trying to remove the parts of the truck causing loss to the former. It was contended that the allegations made in the petition did not warrant any action under section 93, Cr. P. C., that the petition being not a mere information but a complaint, the issuance of search warrant without examining the complainant under section 200, Cr. P. C. vitiated the whole proceedings and that the learned Magistrate could not issue a search warrant with out enquiring as to whether the place was used for deposit or sale of the stolen property:

Held, in such circumstances, it cannot be said that the element of theft was altogether foreign in the case. The intention was apparently dishonest and the circumstances seemed to indicate that the elements of section 378 of the Pakistan Penal Code were there. One partner dishonestly removing a movable property from the joint possession of others and taking it in his exclusive possession and keeping the same in house without the consent of other partners and attempting to dispose of it or its component parts behind their back causing loss to them will be guilty of theft. Thus the allegations made in the petition attract section 98 and it cannot be said that the allegations did not warrant any action under section 98, Cr. P. C.

If pendency of any proceeding or inquiry is not necessary for the issuance of search warrant, the examination of the complainant is also not necessary for the purpose. Such examination is necessary for taking cognizance only. Further, the non‑examination of the informant or the failure to make a preliminary enquiry for the purpose of issuance of a search warrant under section 98, Cr. P. C. may at best be an irregularity curable under section 537, Cr. P. C. The Magistrate concerned having not proceeded to take cognizance of an offence for enquiry but being moved at the existence of elements of theft to issue only search warrant in respect of the truck, the non‑examination of the person on the basis of whose information the Court passed the order under section 98, Cr. P. C. was not at all material and that cannot defeat the purpose of the section.

Abdul Halim v. Shadan Ranjan Dey and another P L D 1968 Dacca 229 rel.

C. F. Karim for Petitioner.

Amjad Hossain for Opposite‑Party.

This Rule was heard on 2nd January 1969 but the judgment was reserved on the joint prayer of the learned Advocates of both sides that they should be given an opportunity to advise their clients to compromise the matter. But nothing has been done so far and the learned Advocate appearing for the petitioner has informed that he has no knowledge whether the parties have compromised the matter in the meantime.

The Rule arises out of an application for setting aside an order issuing a search warrant under section 98, Cr. P. C. in Miscellaneous Case No. 33 of 1966 by Mr. D. P. Das Gupta, Magistrate, 1st Class, Feni.

The opposite‑party Omar Gazi Chowdhury filed a petition under section 98, Cr. P. C. before the sub‑divisional Magistrate, Feni on 19‑3‑68 alleging that his partner (the present petitioner) M. K. Hossain Choudhury took away the joint ejmali truck No. Q A 738 belonging to them, kept it confined in his house and was trying to dishonestly remove the valuable parts of the said truck causing thereby irreparable loss to him. The opposite party in the said petition also prayed for issuance of a search warrant for the truck and keeping the same in the jimma of a neutral person. The learned Magistrate on the basis of the above petition passed the following order:

"19‑3‑68. This is a petition praying for issuing S/W for recovery of Truck under section 98, Cr. N. C. Issue S/W for the recovery of the vehicle. The truck if recovered will remain in the custody of the police till the case is decided.

To 20‑4‑68.

(Sd.) D. P. Das Gupta."

The petitioner challenged the propriety of the above order before the Sessions Judge, Noakhali on various grounds with a prayer to refer the matter to the High Court under section 438, Cr. P. C. The learned Sessions Judge, after hearing the parties rejected the petition by an order dated 26‑7‑68. Being aggrieved thereby the petitioner moved this Court and obtained the present Rule.

Mr. C. F. Karim, learned Advocate appearing for the petitioner has contended that the allegations made in the petition do not warrant any action under section 98, Cr. P. C. that the petition being not a mere information but a complaint, the issuance of search warrant without examining the compliment under section 200, Cr. P. C. vitiates the whole proceedings and that the learned Magistrate cannot issue a search warrant without enquiring as to whether the place was used for deposit or sale of the stolen property.

A careful perusal of sections 96 and 98 of the Code of Criminal Procedure will show that no enquiry need be made for an order under section 96 and for an order under section 98. All that is required in the case of section 96, Cr. P. C. is that the Magistrate should act on information of the commission or suspected commission of an offence, if it is considered essential to the enquiry etc. For application of section 98, Cr. P. C. it has only been stated that the Magistrate should try to get satisfied on receipt of the information before issuing the warrant.

It is thus clear that no proceeding or enquiry for the offence need be pending in either case. Suffice to say that in the case of section 98, the Magistrate is only to be satisfied that a particular place has been used for deposit or sale of stolen property before he issues the search warrant.

In the instant case, the specific allegations are that the parties were the joint owners of the truck but the petitioner had taken away the same, and kept it confined in his house and was also trying to remove its valuable parts. From this it follows that the truck was out of control and possession of one partner and the other partner kept it confined in his house without the consent of the former. The latter was also trying to remove the parts of the truck causing loss to the former.

In such circumstances, it cannot be said that the element of theft is altogether foreign in the case. The intention is apparently dishonest and the circumstances seem to indicate that the elements of section 378 of Pakistan Penal Code are there. One partner dishonestly removing a' movable property from the joint possession" of others and taking it in his exclusive possession and keeping the issue in house without the cosent of other partners and attempting to dispose of it or its component parts behind their back causing loss to them will be guilty of theft.

Thus the allegations made in the petition attract section 98 and it cannot be said that the allegations do not warrant any, action under section 98, Cr. P. C.

I have already indicated earlier that no proceeding or enquiry need be pending for an action under section 98, Cr. P. C. If pendency of any proceeding or inquiry is not necessary for the issuance of search warrant, the examination of the complainant is also not necessary for the purpose. Such examination is necessary for taking cognizance only.

Further, the non‑examination of the informant or the failure to make a preliminary enquiry for the purpose of issuance of a search warrant under section 98, Cr. P. C. may at best be an irregularity curable under section 537, Cr. P. C. The Magistrate concerned having not proceeded to take congnizance of an offence for enquiry but being moved at the existence of elements of theft to issue only search warrant in respect of the truck, the non‑examination of the person on the basis of whose information the Court passed the order under section 98, Cr. P. C is not at all material and that cannot defeat the purpose of the section.

In a recent case i. e. the case of Abdul Halim v. Shadan Ranjan Dey and another (P L D 1968 Dacca 229) all the points raised here before me came up for consideration before a Division Bench where I was also a party. Considering all aspects of the points raised therein and referring to a number of earlier decisions, the Division Bench laid down as follows :‑

"The learned Magistrate in the present case being a First Class Magistrate was quite competent to issue the search warrant under section 98 of the Criminal Procedure Code.

All that is required in the case of section 96 is that the Magistrate should act on information of the commission or suspected commission of an offence, if it is considered essential to the inquiry etc. For application of section 98, it has only been stated that the Magistrate should try to get satisfied on receipt of the information before issuing the warrant.

No proceeding or inquiry for the offence need be pending in either case. Sufficient to say at this stage that in the case of section 98. the Magistrate is only to be satisfied that a particular place has been used for the deposit or sale of stolen property before he issues the search warrant.

If pendency of any proceeding or inquiry is not necessary for the issuance of search‑warrant the examination of the complainant is also not necessary for the purpose. Such examination is necessary for taking cognizance only."

I am bound by the above decisions of" Division Bench. In agreement thereof I hold that the points raised by the learned Advocate, as indicated earlier, have no substance.

In result, the Rule is discharged.

This order will not, however debar the parties to take steps. if any, before any other appropriate forum.

Rule discharged.

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