ORDER
K.L. Shrivastava, J.
1. This revision petition is directed against the order dt. 3-4-1984 passed by the Judicial Magistrate First Class, Neemuch in Criminal Case No. 190 of 1981 whereby the petitioner's application under Section 93 of the Cr. P.C., 1973 (for short 'the Code') for issue of search warrant has been rejected.
2. Circumstances giving rise to the revision petition are these. The petitioner instituted a criminal complaint against the non-applicants before the learned Magistrate in respect of offences punishable under Sections 405 and 420 to the I.P.C. in relation to certain ornaments.
3. The learned Magistrate in exercise of powers under Section 93(1)(a) of the Code ordered issue of search warrant.
4. The order aforesaid was challenged in revision wherein it was held that recourse must first be had to the provision of Section 91 of the Code and if the recourse to this provision is not fruitful, the learned Magistrate is free to exercise his jurisdiction under Section 93 of the Code.
5. Recourse to the provision of Section 91 of the Code proved abortive and by the impunged order the learned Magistrate has held that search warrant under Section 93 of the Code cannot be issued as it would be violative of the guarantee as envisaged in Article 20(3) of the Constitution of India, of immunity from self-discrimination.
6. Learned Counsel for the petitioner contends that Section 93 of the Code contemplates three different situation for issue of search warrant and in the instant case issue of search warrant with recourse to Section 93(1 )(b) or (c) of the Code cannot be said to be violative of the aforesaid guarantee. In support of this submission he has placed reliance on the decision in V.S. Kuttan Pillai's case : 1980CriLJ196 .
7. The point for consideration is whether the impugned order deserves to be interfered with.
8. It would be proper first to advert to the relevant provisions, Article 20(3) of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself.
9. Section 91 of the Code provides for issue of summons to produce document or other thing. Section 93 of the Code lays down when search warrant may be issued. Section 94 ibid provides for search of a place suspected to contain 'stolen property' (vide Section 410, I.P.C.) forged documents etc.
10. In the decision in Kuttan Pillai's, case (l980 Cri LJ 196) (supra) the decision in M. P. Sharma v. Satish Chandra 1954 SCR 1077 : 1954 Cri LJ 865 and State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 , which relates to obtaining specimen writing or thumb impression of the accused have been referred to and in paragraph 9 conflict between observations in the two cases has been noted and it has been held that in view of the decision in Shyamlal Mohanlal's case : 1965CriLJ256 one must proceed on the basis that summons under Section 91(1) of the Code cannot be issued to a person accused of an offence and in the case of such a person recourse to the provision of Section 93(1)(a) of the Code is clearly excluded. The decision points Out that Section 93, however, also envisages situations other than one contemplated by Section 93(1 )(a) of the Code for issuance of search warrant. Under Section 93(1)(b) a search warrant may be issued to produce a document or thing not known to the Court to be in possession of a person. The provision contemplates a situation where there is a definite allegation to recover certain document or thing from a certain specific place and the court is unaware of the fact whether that document or thing or the place is in possession of a particular person. Thereunder a general search warrant may be issued to produce the document or thing and the same can be recovered from any person who may be ultimately found in possession of it and it was not known to the court that the person from whose possession ,it was found was in possession of it.
11. Under Section 93(1)(c) the court may issue a search warrant when it considers that the purpose of an inquiry, trial or other proceedings under the Code will be served by general search or inspection, It comprehends a situation where the court is unaware of not only the person but even the place where the document or thing may be found. In relation to this provision this is what has been observed in para 14 of the decision in Kuttan Pillai's case (1980 Cri LJ 196) (SC) (supra):
When such a general search warrant is issued, in execution of it the premises even in possession of the accused can be searched and documents found therein can be seized irrespective of the fact that the documents may contain some statements made by. the accused upon his personal knowledge and which when proved may have the tendency to incriminate the accused. However, such a search and seizure pursuant to a search warrant issued under Section 93(1)(c) will not have even the remotest tendency to compel the accused to incriminate himself. He is expected to do nothing. He is not required to participate in the search. He may remain a passive spectator. He may even remain absent.
Reference in this connection may also be made to the decision in Yadunandan Sharma's case (1981 (1)MPWN 46).
12. As a result of the foregoing discussion it has to be held that search of the premises occupied by the accused without the accused being compelled to be party to such search as provided Under Section 93(1 )(c) of the Code would pot be violative of the constitutional guarantee enshrined in Article 20(3) of the Constitution. The view taken by the learned Magistrate in passing the impugned order is thus clearly wrong.
13. Before parting with the case it is pertinent to advert to the following observations in para. 17 of the decision in Kuttan Pillai's case (1980 Cri LJ 196) (SC) (supra) regarding issuance of search warrant:
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 mechnical 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.
14. In the result, the revision petition is allowed. The impugned order is set aside and the case is sent back to the Court below for deciding the question of issuance of search warrant under Section 93 of the Code with due advertence to what has been stated above. Record of the case be sent back immediately.