ORDER
1. These are five writ petitions filed under Article 226 of the Constitution of India praying for the issue of a direction in the nature of mandamus commanding the respondents to return certain documents and things seized by the respondents on January 1, 1968, and for certain interim reliefs. Civil Writ No. 16 of 1968 was filed by M/s. Fedders Lloyd Corporation (Private) Limited, represented by Director, S. N. P. Punj, Civil Writ No. 17 of 1968 was filed by M/s Lloyd Electric and Engineering Company represented 'by Partner, V. P. Punj, Civil Writ No. 18 of 1968 was filed by Airserco represented by sole proprietor, T. V. P. Punj, Civil Writ No. 19 of 1968 was filed by M/s. Fedders Lloyd Sales Corporation represented by Partner, S. N. P. Punj, and Civil Writ No. 20 of 1968 was filed by M/s Lloyd Sales Corporation represented by Partner Mrs. I. R. Punj. The respondents in all the writ petitions are the same namely, (1) B. A. Lakshminarayana Swami, Dy. S. P. S.P.E.C.I.A. (I), C.B.I., New Delhi, and (2) Jethanand, Dy. S. P., C. I. A. (I), New Delhi. The facts, the contentions, and the reliefs prayed for by the petitioners are all common, and it is, therefore, sufficient to refer to the affidavits and annexures filed in civil writ petition No. 16 of 1968.
2. It was averred in the affidavit of the 1st respondent, B. A. Lakshminarayana Swami, dated 21st January, 1968, filed in reply to the writ petition No. 16 of 1968, that the five petitioner-concerns which have filed the five writ petitions are sister concerns of the Punj family, which is carrying on business under the name and style of (Sic) and is controlling the said five concerns, that he is the Investigating Officer in respect of a cognizable offence alleged to have been committed by M/s. Lloyd Electric and Engineering Company, M-13, Connaught Circus, New Delhi, which is one of the concerns managed by the Punj family, in conspiracy with S. S. Chauhan and H. C. Mehrotra, Investigating Officers of the Northern Inspection Circle, D. G. S. and D., New Delhi for which a case was registered against the said company under First Information Report (Annexure III), No. R. C./12/67, dated 28-12-1967, under the provisions of Section 120-B of the Indian Penal Code, read with Section 420 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act No. Ii of 1947.
3. The first respondent further averred in his aforesaid affidavit that he had reliable information that the aforesaid company and its sister concerns, in conspiracy with the above mentioned S. S. Chouhan and H. C. Mehrotra, cheated the Government of India and some State Governments in supplying sub-standard air-conditioners under a Rate Contract entered into by the aforesaid company and its sister concerns with the D. G. S. and D., that the air-conditioners supplied under the said Rate Contract were fitted with indigenous compressors whereas the requirement of the Rate Contract was for fitting the said air-conditioners with imported compressors made in U. S. A., and that this was done by dishonestly removing the manufacturer's name plate, disfiguring the markings of the Indian compressors, and passing off the units as being fitted with foreign compressors.
4. According to the 1st respondent, for the purpose of the investigation of the said offence, it became necessary to carry out searches and seize documents and other Arti- cles from the office and factory premises of the said concerns at Connaught Place, New Delhi, and at Kalkaji New Delhi respectively. He, therefore, made a record in writing at 7.30 A. M. on 1-1-1968 under Section 165(1) of the Criminal Procedure Code, which was filed as annexure 'A' by the petitioners and as Annexure R-2 by the respondents. It runs as under :--
"Special Police Establishment Central Investigating Agency (1).
Whereas I, B.A. Lakshminarayana Swamy, Dy. Supdt. of Police, Special Police Establishment, Cia (1), Cbi, New Delhi, am investigating the case in R. C. 12/67-CIA(1) u/s 120B Ipc R/ W Section 420, Ipc and Section 5(2) of Act Ii of 1947, and Whereas, it has become necessary for purposes of my investigation in the said case to take possession of the following documents and things said to be in possession of M/s Lloyd Electric and Engineering Co. M-13 Connaught Place, New Delhi, at their office premises in Connaught Place and in their factory premises at Kalkaji, New Delhi, viz.
1. Rate Contract file of M/s Lloyd Electric Engineering Co. in No. SE6/RC/6770/ l/Lloyd/3472 dated 15-4-65 for the period 1965 to date.
2. All supply orders placed on the said firm in the above Rate Contract including Invoices, Bills, Vouchers, Delivery receipts, Inspection notes etc.
3. Purchase files of the above firm for Air Compressors made from M/s Kirloskar Pneumatics, M/s. Sri Ram Refrigeration Industries, M/s. Usha Refregeration Co., and other firms for the period 1965 to date.
4. All correspondence files of M/s Lloyd Electric and Engineering Co. Ltd., D. G. S. and D. and other Government Deptt. regarding supply of Air Conditioners for the period 1965 to date.
5. All correspondence files of M/s Lloyd Electric and Engineering Co., M/s Punj Sons (P) Ltd., M/s. Fedders Lloyd Corporation (P) Ltd., and M/s. Fedders Lloyd Sales Corporation for the period 1965 to date in respect of manufacture and sale of Air-Conditioners, purchase of accessories in the above manufacture with other firms and between themselves also.
6. Correspondence files of the above firms with foreign suppliers in respect of Air Compressors during 1965 to date.
7. Correspondence files of the above four firms with Ministry of Finance for Foreign Exchange allocation for the period 1965 to date.
8. All invoices, Bills of entry and Bills raised and delivery receipts pertaining to Air Conditioners of the above said firms for the period 1965-67.
9. Unit Serial No. Register of Air Conditioners manufactured by the said firms for the period 1965 to date.
10. All documents and Registers of the said firms relating to the payment of Excise Duties on Air-Conditioners for the period 1965 to-date.
11. Gate Passes and Duplicate counterfoil Books of Gate Passes of the Factory showing the sale and transport of Air-Conditioners manufactured in the factory for 1965-66.
12. Cash books and Ledgers, Bahi Katha books of the said firms for the period 1965 to date.
13. Stock, Issue Registers of Air Conditioners manufactured in the Factory and Air Compressors purchased from other firms or imported.
14. One sample Air Compressor of 1. Hp, 1.5 H. P. 2 H. P. and 2.5 H. P. manufactured and supplied indigenously and also imported from U. S. A.
15. Discarded name plates of manufacturers of Air compressors supplied by M/s. Kirloskars, other firms including foreign suppliers.
16. Any other documents or things connected with the manufacture or sale of Air Conditioners, Air Compressors during the period 1965 to date with the said Finns; and Whereas there is reason to believe that the said firms are nto likely to produce the said documents or tilings when asked for and they are likely to be tampered with or otherwise disposed of, and it is nto possible to obtain the said documents and things without undue delay, otherwise than by an immediate search of the premises of the said Firms reterred to below, I am, therefore, conducting simultaneous searches under Section 165 (1), Cr. P. C. at the following premises of the said firms on this day the 1st of January 1968 immediately for seizure of the said documents and things, if found therein, for purposes of the above investigation.
Premises to be searched:
1. Office premises of M/s. Punj Sons (P.) Ltd., M/s. Kedders Lloyd Corporation (P.) Ltd., (3) M/s. Lloyd Electric Engineering Corporation at M-13, 'Punj House, Con-naught Place New Delhi.
2. Factory premises of M/s. Punj Sons (P.) Ltd. and M/s. Fedders Lloyd Sales Corporation at Kalkaji, New Delhi.
Dated 1st Jan. 1968 7.30 A. M.
Sd/-
B. A. Lakshminarayana Swami Dy. S. P. SPE/CIA (I) New Delhi.
Submitted to the Magistrate 1st Class (Special), Delhi, for kind information.
Sd/-
B. A. Lakshminarayana Swamy Dy. S. P./SFE/CIA (1)".
1-1-68.
5. According to the 1st respondent, simultaneous searches had to be carried out in the office premises at Connaught Place and in the Factory premises at Kalkaji, and as it was physically nto possible for him to search both the premises simultaneously, he made an order (Annexure R-1) at 7-45 A. M. on 1-1-1968 under Section 165(3) of the Criminal Procedure Code deputing respondent No. 2 to search the office premises at Connuaght Place, while he himself searched the factory premises at Kalkaji on the same date. The said order runs as under :--
"To Shri Jethanand Dy. Supdt. of Police, S. P. E., C. I. A. (I), New Delhi.
Sub: RC. 12/67-CIA-Investigation of. Requisition u/s. 165 (3) Cr. P. C.
For purposes of my investigation in the above case, it has become necessary to conduct simultaneous searches at the office premises of M/s. Lloyd Electric and Engineering Co., M-13, Punj House, Connaught Place and at the Factory premises of M/s. Punj Sons (P.) Ltd., Kalkaji, this morning. Copy of the grounds of search submitted to the Magistrate, 1st Class, Delhi, is enclosed for your information.
As I will be engaged in the search of the said factory premises at Kalkaji, I am requesting you to conduct the search of the office premises of M/s. Lloyd Electric and Engineering Co., and other allied concerns located at No. M-13, Punj House, Con-naught Place, New Delhi, as detailed in the said grounds of search and to seize the documents and things referred to therein.
This requisition is being made to you in accordance with Section 165(3) Cr. P. C.
Sd/-
B. A. Lakshminarayana Swamy Deputy Supdt. of Police, S. P. E., C. I. A. (I), New Delhi.
Dated 1-1-68.
7.45 A. M.
6. According to the petitioners, the 1st respondent seized the documents and things as detailed in Annexure 'B' to the writ petition No. 16 of 1968, and the 2nd respondent seized documents and things mentioned in Annexure 'C' to the said writ petition No. 16 of 1968. They thereupon filed the present five writ petitions in this Court on 8-1-1968 praying for the issue of "a direction in the nature of a mandamus commanding the respondents to forthwith return the documents and things seized on 1st January, 1968, under Annexures 'B' and 'C'", and for certain other interim reliefs.
7. The contentions of the petitioners in the writ petitions are--
(1) that the action of the 1st respondent in having searched the factory and in having seized the documents and things mentioned in Annexure 'B' to the writ petition was unauthorised and illegal, firstly on the grounds that he did nto record in writing the grounds of his belief as required by Section 165(1) of the Criminal Procedure Code, and secondly on the grounds that the said factory was nto one of the premises mentioned to be searched in Annexure 'A' (Annexure R-2), the record made by him under Sub-section (1) of Section 165, Criminal Procedure Code;
(2) that the action of the 2nd respondent in having searched the office premises of the petitioners at Punj House, Connaught Place, New Delhi, and in having seized the documents and things mentioned in Annexure 'C' to the writ petition, was illegal and contrary to the mandatory provisions of Sub-section (3) of Section 165 Criminal Procedure Code, in that the respondent No. 1 did nto make any order in writing recording his reasons for his being unable to conduct the search himself in person, and in that the 1st respondent did nto deliver an order in writing to respondent No. 2 specifying therein the place to be searched and the things for which the search is to be made, and the second respondent did nto have any such order as is contemplated by Section 165(3), Criminal Procedure Code, nor did he show any such order to the petitioners; and (3) that the searches and seizures made by the two respondents were contrary to law and illegal for the further reason that the copies or the record, if any, made under Sub-section (1) and Sub-section (3) of Section 165, Criminal Procedure Code, were nto sent forthwith to the nearest Magistrate empowered to take cognizance of the offence, as provided for in Sub-section (5) of Section 165 of the Criminal Procedure Code.
8. In reply to the writ petitions, an affidavit of the 1st respondent, dated 21-1-1968, which has already been referred to above, was filed. As already stated, the 1st respondent averred in the said reply that the five petitioner-concerns are the concerns of the Punj family which is carrying on business under the name and style of and is controlling the five petitioner-concerns. It was further averred that V. P. Punj was shown the requisite orders along with the grounds for search, that the search and seizure were made strictly in accordance with law, that he did make an order under Section 165(3) Criminal Procedure Code, a copy of which was filed as Annexure R-1 to the reply affidavit, that as it was nto physically possible for him to make the searches both at Con-naught Place and at Kalkaji, he searched the factory premises at Kalkaji and deputed respondent No. 2 to search the office premises at Connaught Place, that the report prepared under Section 165(3), Criminal Procedure Code, was shown to V. P. Punj who was a partner or executive and represented all the firms, along with a copy of the grounds for search, that in token of having seen them he endorsed the grounds for search with the remark "seen" and signed it, that that fact was also mentioned in the seizure list, a copy of which was given to V. P. Punj and was acknowledged by him, that a copy of the record prepared under Section 165(3), Criminal Procedure Code, and a copy of the seizure list were also sent to the Magistrate, 1st Class, Delhi, though there was some delay as the same was sent on 10-1-1968 when the deponent returned from tour which he had to undertake on Government duty immediately after the search and seizure on 1-1-1968, that the record prepared under Sec, 165 (1), Criminal Procedure Code, was sent to the Magistrate on the day of the search itself, and that, therefore the searches and the seizures were quite legal and in accordance with law.
9. As a rejoinder to the said reply V. P. Pun] filed an affidavit, dated 23-1-1968, in which he stated that it was incorrect to say that he was shown "the requisite orders along with the grounds for search", that the only document that was shown to him was Annexure 'A' to the writ petition (i. e. the record made under Section 165(1), Criminal Procedure Code), wherein he made the endorsement "seen V. P. Punj", that excepting that document, no other document was shown to him by either of the respondents, and that no separate record under Section 165(3) or Annexure R-1 or separate record containing the grounds under Section 163(1) was shown to him at any time.
10. Shri S. N. P. Punj also filed an affidavit, dated 23-1-1968, as a rejoinder to the reply of the respondents. In this affidavit, it was reiterated that the respondents did nto comply with the mandatory provisions of Section 165, Criminal Procedure Code, and it was stated that the First Information Report was dated 28-124967, that it contains an endorsement which shows that it was forwarded on the same day to Shri M. S. Joshi, Special fudge, Delhi, that another endorsement thereon shows that it was received by the learned Special Judge at 1-10 P. M. on 3-1-1968, that on 8-1-1968, an application for copies of the record made under Section 165 Criminal Procedure Code, was made by the petitioners in the Court 08 the Special Judge for S. P. E. cases, Delhi, as provided in the proviso to Section 165(S) of the Criminal Procedure Code, that the Special Judge directed the Senior Public Prosecutor, Cia (I) to report immediately, that the Senior Public Prosecutor, in his turn, called upon the Investigating Officer to report by 2 P. M, on 8-1-1968, that on 9-1-1968, the record under Section 165 (1), dated 1-1-1968, signed by B. A. Lakshminarayana Swamy, 1st respondent, and the requisition or order under Section 165(3), also signed by B. A. Lakshminarayana Swamy, were submitted in the Court of the Special Judge, Delhi, and copies of the said two documents were supplied to the petitioners by an order of the Special Judge, Delhi, dated 9-1-1968, that photostat copies of the application, dated 8-1-1968, for emergent copies of the record made under Section 165(1) with endorsement thereon, the order of the Special Judge, dated 9-1-1968, directing copies of the documents to be furnished, the copies of the First Information Report, the record under Section 165(1), and the requisition or order under Section 165(3) were filed as Annexures 1 to 5 to this affidavit, and that the above facts show clearly that the provisions of Sub-sections (1), (3) and (5) of Section 165 of the Criminal Procedure Code were nto complied with at all, and consequently the searches and the seizures were illegal and invalid.
11. The first respondent, B. A. Lakshminarayana Swamy filed a further affidavit dated 27-1-1968, in reply to the aforesaid rejoinder affidavit of V. P. Punj and S. N. P. Punj. In this affidavit it is stated that besides the order issued under Section 165 (1), Criminal Procedure Code, the 2nd respondent, Jethanand, had also shown to V. P. Punj the requisition or order issued by the 1st respondent under Section 165(3), that the 2nd respondent had, in fact, mentioned this fact in the memo, which he had prepared after the search at the time of taking over the documents on 1-1-1968, and the re-levant part of the memo, reads as follows: "The search has been conducted in pursuance of the request under Section 165(3), Criminal Procedure Code, of Shri B. A, Lakshminarayana Swamy Deputy Superintendent of Police, Special Police Establishment, C. I. A. (I). It has been shown to Shri V. P. Punj along with the copy of the Grounds of Search", and that the copy of the above search memo, was handed over to V. P. Punj who acknowledged the receipt of the same of the original search memo.
12. He further reiterated that the searches were made in accordance with law, and that the provisions of Section 165, Criminal Procedure Code, were complied with, and stated that after the case R. C./12/67 had been made over to him for investigation at about 6 P. M. on 28-12-1967, he had carefully applied his mind to the allegations which were required to be investigated by him, that an essential part of his investigation was to establish whether indigenous compressors manufactured by M/s. Kirloskar Pneumatics Limited had been fitted in the place of imported compressors which were to be fitted to two-ton air-conditioners, that the First Information Report had mentioned that the firm had dishonestly removed the manufacturers' plates and disfigured the markings in the compressors fitted with the air-conditioners units, that the essential and vital things for the purposes of investigation was to recover the manufacturers' plates and the markings from the company, that during the course of the investigation on the 29th, 30th and 31st, he had further come to know that M/s. Lloyd Electric and Engineering Company, M/s. Punj Sons (P.) Ltd., M/s. Fedders Lloyd Sales Corporation and M/s. Fedders Lloyd Corporation, were all associate concerns run by the same family members, that the accounts were inter-linked and the said firms were located in one premises and, in fact, the same clerks used to attend to the work of all the firms, that the same was the information regarding the factory premises at Kalkaji, that he had reasons to believe that the documents which were necessary for the purposes of his investigation into the alleged offence, which he was conducting, could nto normally be found anywhere else except at the office premises or the factory premises, and he was convinced that the said documents were to be found at the two premises mentioned in the Grounds of Search, that he was also satisfied that the party would nto produce, when asked for, any incriminating documents and particularly the disfigured name plates of manufacturers of air-compressors supplied by M/s. Kirloskar Pneumatics and other firms, that he was further satisfied that if the searches were nto conducted immediately, and if the accused came to know that the police were looking for the discarded name plates and other documentary evidence, the incriminating documents and things would be done away with, that, in the circumstances, it was necessary for him to conduct immediate searches on 1-1-1968, that in the record prepared under Section 165(1) he stated clearly the reasons for the search, and that the record prepared by him under Section 165(1), therefore, complied strictly with the requirements of law. He further stated that he had sent the Grounds of Search prepared by him under Section 165(1), Criminal Procedure Code, to Shri R. N. Mehrotra, who was one of the Magistrates, having jurisdiction to try Spe cases that Shri N. L. Kakkar had nto till then taken over as Special Magistrate, and at that time he did nto know that the record should be sent to Shri N, L. Kakkar and nto to Shri R. N. Mehrotra, that the record prepared by him under Section 165(1), Criminal Procedure Code, on 1-1-1968 and sent to Shri R. N, Mehrotra, was placed before the latter on 1-1-1968 at about 10-00 A. M., that a photostat copy of the record sent to the learned Magistrate with his endorsement thereon, dated 1-1-1968, was filed as Annexure R-2 to this affidavit, that the record prepared by him under Section 165(1) was thus sent forthwith to the learned Magistrate empowered to take cognizance of the offence, that he was further advised that although an offence under Section 5(2) of the Prevention of Corruption Act, Act Ii of 1947, is friable by a Special Judge, there is no bar to the Magistrate taking cognizance of the said offence, that the learned Magistrate, after making the endorsement, had returned the record with the instructions that it may be sent to the competent Court, that since in the record prepared by him under Section 165(1), Criminal Procedure Code, he clearly mentioned that simultaneous searches would be taken at two different places, it was strictly nto necessary in accordance with law to prepare a separate record under Section 165(3) or to forward the same to the nearest Magistrate, that the record under Section 165(1), Criminal Pro-cedure Code, covered both the aspects and it was a composite record, that the record, sent to the Magistrate, Shri R. N. Mehrotra, was placed before the Magistrate at about 10-00 A. M., and the actual commencement of the search (at Kalkaji) was also commenced at 10 A. M. and went on till about 10-30 P. M., that S. N. Punj was present at the time of the search and a copy of the search memo, was delivered to him and his acknowledgment was taken, that 2nd January was a holiday and thereafter he proceeded to Bombay on Government work on the morning of 3rd January, 1968, and returned to Delhi on the afternoon of 9th January, 1968, that on 10-1-1968 he placed before Shri N. L. Kakkar the following documents :--
(1) Papers returned by Shri R. N. Mehrotra for being placed in the Court of the Special Magistrate;
(2) His requisition is writing to Shri Jethanand, Dy. S. P. to conduct the searches; and (3) possession memo;
and that he had thus complied with the requirements of Section 165, Criminal Procedure Code, and had acted in the discharge of his duties as a public servant in a bona fide manner.
13. Shri A. S. R. Chari, the learned counsel for the petitioners, urged before us the three contentions raised in the writ petitions which have already been set out above. The first contention is that the search and the seizure made by the 1st respondent in the factory premises at Kalkaji were illegal in that the first respondent did nto record in writing the grounds of his belief as required by Section 165(1) of the Criminal Procedure Code, and in that the said factory was nto one of the premises to be searched, mentioned in the record made by him under Sub-section (1) of Section 165, Criminal Procedure Code. Section 165(1) runs as under: "165 (1) -- Whenever an officer in charge of a police-station or a police-officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police-station of which he is in charge, or to which he is attached, and that such thing cannto in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search, or cause search to be made, for such things in any place within the limits of such station."
14. As pointed out by the Supreme Court in State of Rajasthan v. Behman, , there are four groups of Sections in the Criminal Procedure Code regulating the searches authorised under it. One of the said groups appears in Chapter Xiv of the Code which provides for searches by a police officer during the investigation of a cognizable offence. The power to search given under this Chapter is incidental to the conduct of investigation which the police officer is authorised by law to make. A reading of Sub-section (1) of S. 165 shows that it laid down two requirements which are to be fulfillled before the said power is exercised. They are--
(1) The police Officer should have reasonable grounds for believing--
(a) that anything necessary for the purposes of an investigation into an offence may be found in any place; and
(b) that such thing cannot, in his opinion, be otherwise obtained without undue delay; and (2) he should record in writing the grounds of his belief specifying in such writing, so far as possible, the thing for which search is to be made.
15. The Supreme Court pointed out in the aforesaid decision that search is a process exceedingly arbitrary in character, and that, therefore, the above two requirements are imposed as conditions on the exercise of the power to search since they are conditions for the exercise of the power conferred by the section, they should be complied with by the police officer before he exercises the power to search given to him under the section. Even if the said two requirements of section 165(1) are regarded, nto as conditions for the exercise of the power, but as the mode or the manner in which the power conferred on the police officer is to be exercised, the said power has still to be exercised in the manner provided in the section and in no other way, as pointed out by the Privy Council in Nazir Ahmad v. King Emperor, 63 IndApp 372: Air 1936 Pc 253 (2) in which their Lordships of the Privy Council observed at p. 381 (of I. A.): (at p. 257 of AIR) that-- "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or nto at all."
Therefore, whether the requirements of Section 165(1) are regarded as conditions for the exercise of the power to search conferred by the section or as the manner in which the said power has to be exercised by the police officer, the said requirements have to be fulfillled by the police officer before he exercises the power to search conferred by the section. The question then arises as to whether the two requirements are mandatory or directory, i.e. whether they should be iully and strictly fulfillled or whether it would be sufficient if they are fulfillled substantially.
16. The significance and the effect of the two terms "mandatory" and "directory" are now well settled. As stated in 'Maxwell' on Interpretation of Statutes (Eleventh Edition)' at page 364-- 'The general rule is, that an absolute enactment must be obeyed or fulfillled exactly, but it is sufficient if a directory enactment be obeyed or fulfillled substantially."
17. A Full Bench of the High Court of Andhra Pradesh observed to the same effect in Satyanarayana v. Venkata Sub-biah, Air 1957 Andh Pra 172. Therefore, if the provisions in Section 165(1), Criminal Procedure Code, are regarded as mandatory, the requirements therein have to be fully and strictly fulfillled. On the other hand, if they are regarded as directory in nature, substantial compliance with them would be sufficient. We have, therefore, to see whether the said provisions in Section 165(1) of the Criminal Procedure Code are mandatory or directory,
18. As pointed out by the Supreme Court in Raza Buland Sugar Co. Ltd. v. Municipal Board. Rampur, , at p. 975: , the question as to whether a particular provision of a statute is mandatory or directory cannto be resolved by laying down any general rule. In the words of the Supreme Court, it-- "depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory."
19. As already pointed out above, the requirements in Section 165(1) were characterized by the Supreme Court in , as conditions imposed on the exercise of power. In that case, the Supreme Court was nto concerned, as such, with the question as to whether the provisions in Section 165 of the Code of Criminal Procedure are mandatory or directory. It cannot, therefore, be said that by the above mentioned observation, the Supreme Court laid down or decided that the provisions in Section 165 of the Criminal Procedure Code are mandatory in the strict sense of the term. It has also to be noted that at page 213, the Supreme Court observed that the recording of reasons required by Sub-section (1) of Section 165 of the Criminal Procedure Code does nto confer jurisdiction to make a search, though it is a necessary condition for making the Search, that the jurisdiction or the power to make a search is conferred by the statute and nto derived from the record of reasons, and that-- "section 163 of the Code lays down Various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore it is to ignore the material part of the provisions governing searches, If that can he ignored, it cannto be said that the search is carried out in accordance with the provisions of the Code of Criminal Procedure: it would be a search made in contravention of the provisions of the Code."
In that view, the Supreme Court upheld the conclusion of the High Court that the respondent before the Supreme Court had a right to prevent the police officer from making the search. Thus, the said decision of the Supreme Court cannto be regarded as a ruling that the provisions in Section 165(1) of the Criminal Procedure Code arc mandatory in the strict sense of the term. All that the Supreme Court pointed out in that case was that the recording of reasons required in section 165(1) is an important step in the matter of search and should nto be ignored.
20. The object of the legislature in imposing the requirements or conditions Upon the power to make a search under Section 165(1) is to provide a safeguard against any mala fide, whimsical or arbitrary searches of the property of a citizen or the invasion of the liberty or the privacy of the people by police officers. The said object is in no way affected or defeated by regarding the provisions in Section 165(1) as directory. The power to make a search is an essential and important instrument in the hands of the police for conducting an investigation into an alleged offence and securing evidence regarding the offence, and that is why the power is conferred upon the police officers by this section. If the requirements or conditions provided in Section 165(1) of the Criminal Procedure Code are held to be mandatory, they will have to be fully and strictly complied with, and any slight departure from or non-compliance with the procedure prescribed in Section 165(1) would render the entire search illegal and ineffective, and thus the very purpose in conferring the power to search upon the police officers under Section 165(1) would be defeated. On the other hand, as held in Jagdish Chandra Gupta v. Union of India, -- "even a directory provision is intended to be obeyed, and it does nto authorise its deliberate and conscious violation or breach; it does nto purport necessarily to confer an absolute discretion to do or nto to do the thing directed. Directory provision no doubt calls for obedience but a failure to obey the direction, may nto render the thing otherwise duly done but in disobedience of it, an absolute nullity or non est which the judicial eye must decline to see."
21. On a consideration of all the above mentioned aspects and the language of Sub-section (1) of Section 165 of the Criminal Procedure Code, we are of the opinion, and we hold, that the provisions in the said Sub-section (1) are only directory and nto mandatory, and consequently substantial compliance with the requirements in the said Sub-section (1) would be sufficient. This view of ours gives effect to both the object of the legislature in conferring the power to search upon the police officers under Section 165(1), and the object to provide safeguards or protection against any mala fide, whimsical or arbitrary searches by the police officers.
22. In Maingal Singh v. Ghulam Mohd., Air 1939 Lah 280 (282, 284), the High Court of Lahore held that the provisions of Section 165 to the effect that before making a search a police officer should record in writing the grounds of his belief etc., are directory and nto mandatory.
23. In a subsequent decision, Emperor v. Mohd. Shah, Air 1946 Lah 456, Marten, J. and Bhandari. J. held that-- "the simple safeguards incorporated by the legislature in Section 165. Criminal Procedure Code, are mandatory, nto directory, and must be carried out immediately and fully, or as nearly so as they can be in the exigencies and circumstances of each case. Unless this is done, the search is without jurisdiction and bad in law."
It has to be noticed that though the learned Judges characterized the safeguards in Section 165 as mandatory, they still observed that the said safeguards must be carried out immediately and" fully or "as nearly so as they can be in the exigencies and circumstances of each case".
The learned Judges thus, in effect, held, that substantial compliance with the provisions in Section 165 would be sufficient, and that it is only when there is nto even such substantial compliance, the search would be bad in law. The decision in Maingal Singh's case, Air 1939 Lah 280 cannot, therefore, be regarded to have been overruled or differed from in this decision.
24. In Nava v. State of Mysore, Air 1957 Mys 24, it was held that-- "Section 165 does, of course, cast an obligation on the police officer to express in writing as to what led him to make the search without a warrant, and this is to some extent a safeguard against the possibility of wanton annoyance and needless harassment caused by a search. Disregard of the provisions amounts to a default in doing what is enjoined by law. But, the direction contained in the section cannto be treated as imperative and independent of the circumstances of the case. When the authority for the search does nto appear to be made use of as a cover for harassment and malicious interference with peace and privacy a person is accustomed to, in his residence and the materials gathered are incriminating, want of conformity to the section is to be regarded as unessential."
25. In some decisions, It was held that the non-recording of reasons for search under Section 165(1) of the Code of Criminal Procedure makes the search illegal to the extent that the person whose house was searched would escape with impunity in case of an obstruction to that illegal search, and that the illegality of the search, however, does nto make the evidence of seizure inadmissible, though the Court may be circumspect to closely scrutinise the evidence of seizure. (See State v. Satyanarayan, , Radha Kishan v. State of Uttar Pradesh, and Cochan Velayudhan v. State of Kerala, (FB)), In some decisions it was held that the contravention of the provisions in section 165 of the Code of Criminal Procedure only enjoins the Court to look into the matter closely, but does nto vitiate the trial if there is no miscarriage of justice or any prejudice to the accused (See ; Pyli Yaccob v. The State, Air 1953 Trav-Co. 466, Rulia v. The State, (1963) 65 Pun Lr 1128 and Guljar Singh v. The State, (1962) 64 Pun Lr 403.) These decisions are nto of assistance as the questions with which we are concerned, viz. whether Section 165 of the Code of Criminal Procedure is mandatory or directory and whether substantial compliance with the provisions of the section is sufficient, were not, as such, involved or considered in them.
26. In Commr. of Commercial Taxes, Board of Revenue, Madras v. Ramkishan Shrikishan Jhaver, , the Supreme Court observed at page 67 as follows: "as to the accounts etc. said to have been seized, it appears to us that the safeguards provided under Section 165 of the Code of Criminal Procedure do nto appear to have been followed when the search was made for the simple reason that everybody thought that the provision was nto applicable to a search under Sub-section (2) (of Section 41 of the Madras General Sales Tax Act 1 of 1959). Therefore, as the safeguards provided in Section 165 of the Code of Criminal Procedure were nto followed, anything recovered on a defective search of this kind must be returned."
It has to be noticed that in the said case before the Supreme Court, there was no compliance at all with the requirements of Section 165 of the Code of Criminal Procedure, and yet the Supreme Court characterized the search only as a "defective" search. Further, the Supreme Court was nto concerned, as such, with the question as to whether the provisions in Section 165 are mandatory or directory, or with the question as to whether a substantial compliance with the said provisions would be sufficient.
27. In , the Supreme Court observed as follows: "So far as the alleged illegality of search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is nto vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure, are contravened, the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search, the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences, no further consequence ensues,"
Thus, in this decision also the Supreme Court was nto concerned, as such, with the question as to whether the provisions in Section 165 are mandatory or directory, and the question as to whether substantial compliance with the provisions would be sufficient.
28. Thus, while the decisions of the Supreme Court referred to above do nto lay down anything to the contrary, the decisions of the High Courts of Lahore and Mysore are in line with the view taken by us that the provisions in section 165(1) are nto mandatory or imperative, but only directory, and substantial compliance with the said provisions would be sufficient.
29. Shri A. S. R. Chari referred to an unreported judgment of a Division Bench (Bakshi and Thakor, JJ.), of the High Court of Gujarat, dated 11/13-10-1967, in New Swadeshi Mills of Ahmeda-bad Ltd. v. Shri S. K. Rattan, Spl. Civil Appln. No. 1198 of 1967 (Guj), filed under Article 226 of the Constitution of India. In that case also the search made by the respondents therein under S. 165 of the Code of Criminal Procedure was challenged as illegal on the ground that the provisions in Section 165 were nto complied with, and a return of the documents etc. seized during the search was prayed for. The learned Judges, after setting out the relevant provisions of the Code of Criminal Procedure, pointed out that the provisions in Section 165 are safeguards for the protection of the private rights of a subject in whose property a police officer purports to search for things necessary for the purposes of an investigation into an offence that the said provisions are conditions which are required to be fulfillled before a search can be made under the section, that if the said conditions are nto fulfillled or ignored, it would mean that an important provision of law has nto been followed, and such provisions intended and meant for the safeguard of the rights of the subject cannto be held to be merely directory in nature. Then, after referring to a passage in the decision of the Supreme Court in Collector of Monghyr v. Keshav Prasad Goenka, , wherein the provisions of Section 5 (A) of the Bihar Private Irrigation Works Act were held to be mandatory, and the factors to be considered in deciding the question as to whether any requirement is mandatory or directory, the learned Judges observed: "if such provisions are nto considered to be mandatory, it would result practically in removing the safeguards that have been placed by the legislature on the indiscriminate use of powers of search and seizure by a police officer. We are, therefore, of the view that the provisions of Sub-section (1) of S, 165 which provide for certain requirements which should be satisfied before a search could be started under that Sub-section are mandatory in nature".
Then, after examining in detail the provisions in Section 165, the learned Judges observed as follows: "We have seen what are the requirements of the section which must be complied with before a police officer conducting an investigation could validly institute a search of the nature mentioned in Section 165. We have also seen that these provisions must be strictly and substantially complied with. Now let us see on the facts of the present case how far these provisions have been complied with."
Thus, the learned Judges held that the provisions of Section 165 are mandatory on the ground that they are important safeguards against interference with the rights of a subject by the police, and are conditions which should be fulfillled before a search under Section 165 of the Code of Criminal Procedure could be made. All the same, the learned Judges stated in the last passage quoted above that the provisions must be strictly and substantially complied with. With great respect to the learned Judges, we have to state that there is a well-settled distinction between a mandatory requirement and a directory requirement, namely, while the former has to be fulfillled strictly, the latter may be substantially complied with, and if it is sufficient that a requirement is substantially complied with, it would mean that the said requirement is directory and nto mandatory. While we respectfully agree with the observation of the learned Judges that it would be sufficient if the provisions in Section 165(1) are complied with substantially, we cannto agree with the observation of the learned Judges that the said provisions are to be characterized as mandatory and nto directory. Further, it is well settled that even a requirement which is directory has to be obeyed and fulfillled, and it is nto as if the requirement, merely because it is directory, may be ignored or violated. In the above decision, it seems to have been assumed that if a provision or requirement is directory, its fulfillment is discretionary and nto obligatory. That is why, perhaps, the learned Judges, after stating that the provisions in section 165 are important safeguards or conditions which should be fulfillled before a search can be made, characterized them as mandatory and nto directory. In our opinion, for the reasons already stated above, the provisions in Sub-section (1) of Section 165 of the Code of Criminal Procedure are directory and nto mandatory, and it would be sufficient if they are complied with substantially.
30. As already stated above, the conclusion of ours that the provisions in S. 165(1) are directory does nto mean that; the police officer has a discretion to fulfill or nto to fulfill the requirements of the said Sub-section. The said requirements should be fulfillled at least substantially before any police officer seeks to exercise the power to search under the section. If in a case there is no such substantial fulfillment of the requirements of the section, the search made by the police would nto be one in accordance with the provisions of the section, and would, therefore, be irregular in law.
31. Now, the contention of Shri A. S. R. Chari, as already stated, is that the first respondent did nto record in writing the grounds of his belief as required by Section 165(1) of the Criminal Procedure Code, and that the factory premises was nto one of the premises to be searched, mentioned in the record made by him under Sub-section (1) of Section 165. Sub-section (1) of section 165 lays down two requirements, viz.--
(1) that the police officer should have reasonable grounds for believing--
(a) that anything necessary for the purpose of investigation into an offence may be found in any place; and
(b) that such thing cannot, in his opinion, be otherwise obtained without undue delay; and (2) he should record in writing the grounds of his belief specifying in such writing, so far as possible, the thing for which search is to be made. The first requirement itself consists of two parts, viz.--
(i) a belief, for reasonable grounds, that a thing necessary for the investigation may be found in a particular place; and
(ii) an opinion that the said thing cannto otherwise be obtained without undue delay.
The second requirement is that the grounds for the belief (mentioned in the first part of the first requirement) should be recorded in writing, specifying, so far as possible, the said "thing" for which search is to be made.
In the present case, the record made by the first respondent is Annexure 'A' (Annexure R-II), and the same has already been set out above in extenso. In that record, the first respondent stated that certain documents and things enumerated by him in the said record were said to be in the possession of M/s Lloyd Electric & Engineering Company, M-13 Connaught Place, New Delhi, at their office premises in Connaught Place and In their factory premises at Kalkaji, that he had reasons to believe that the firms (referred to by him in the record) were nto likely to produce the said documents or things when asked for, and they were likely to be tampered with or otherwise disposed of and that it was nto possible to obtain the said documents and things, without undue delay, otherwise than by an immediate search of the premises of the said firm referred to in the record. Thus, he mentioned the necessity of the documents and things for the purposes of the investigation, the places in which they may be found, and his opinion that the said documents and things could nto be otherwise obtained without undue delay. There was thus a compliance, or at any rate a substantial compliance, with the aforesaid two parts of the first requirement in Sub-section (1) of Section 165.
The argument of Shri A. S. R. Chari is that the first respondent did nto set out the reasons for his belief that the documents and things may be found in the places mentioned in the record. It is true that the first respondent wrote in the record only that the documents and things were "said to be" in the possession of M/s Lloyd Electric & Engineering Co., etc. .... .In other words, the reason given by the first respondent for his believing that the documents and things may be found in the possession of M/s. Lloyd Electric & Engineering Co. at their office and factory premises in Connaught Place and Kalkaji, was that they were "said to be" in the possession of the company at the aforesaid premises. Shri Chari argued that it was a mere statement that the documents and things are "said to be" in the possession of the company, and that it was nto a sufficient compliance with the requirement that the grounds of his belief should be recorded in writing. We find it difficult to accept this argument of Shri Chari. By using the words "said to be", the first respondent clearly implied that he had information from some source that the documents and things were in the possession of M/s. Lloyd Electric and Engineering Company at their office and factory premises in Connaught Place and Kalkaji, and that he believed the same. The information which he received was the reason or ground for his belief and the same was stated by him in writing. It may be that he could have stated the same reason or ground in a more elaborate manner. But, merely because he chose to be brief and used the words "said to be", it cannto be said that he did nto set out the grounds for his belief. The contention of Shri Chari that the first respondent did nto record in writing the grounds of his belief as required by Section 165 (1) of the Criminal Procedure Code, cannot, therefore, be accepted.
32. The argument of Shri Chari that the factory premises at Kalkaji was nto one of the premises to be searched as mentioned in the record made by the first respondent under Sub-section (1) of Section 165, cannto also be accepted. In Sub-section (1) of Section 165, the place where the search is to be made is mentioned only in the context of prescribing that the police officer should have reasonable grounds for believing that a thing necessary for investigation may be found in any place. The last part of the Sub-section in which the requirement that the police officer should record in writing the grounds of his belief is contained, does nto refer to the place in which the search is to be made. The police officer is required to record in writing only the grounds of his belief, and the thing for which the search is to be made. There is thus no specific requirement in that part of Sub-section (1) of Section 165 that the place in which search is to be made should also be recorded in writing. As already stated, the place has to be mentioned incidentally in recording the grounds of the belief of the police officer. But, it would nto be correct to say that the place in which the search is to be made has to be recorded in writing as a condition or requirement under the Sub-section (1) of Section 165, and that any vagueness in so recording the place of search would render the search bad in law. However, in the present case, the first respondent did mention clearly in the record the places in which search was to be made. In the first part of the record, Annexure 'A', he stated that the documents and things were "said to be" in the possession of M/s. Lloyd Electric & Engineering Co., M-13, Connaught Place, New Delhi, "at their office premises in Con-naught Place and in their factory premises at Kalkaji, New Delhi". In item 5 of the list of documents and things set out in the record, annexure 'A' (Annexure R-II), the first respondent stated as follows; "5. All correspondence files of M/s. Lloyd Electric & Engineering Co., M/s. Punj Sons (P) Ltd,, M/s. Fedders Lloyd Corporation (P) Ltd., M/s. Fedders Lloyd Sales Corporation of the period 1965 to date in respect of manufacture and sale of air-conditioners, purchase of accessories in the above manufacture with other firms and between themselves also."
He thus made a clear reference to the four firms in item 5. In items 6 to 10, 12 and 16 also the first respondent mentioned the documents and things of or relating to the said firms. He next stated that he had reason to believe that "the said firms" were nto likely to produce the documents and things when asked for, that the said documents and things were likely to be tampered with, or otherwise disposed of, and it was nto possible to obtain the said documents and things, without undue delay, otherwise than by "an immediate search of the premises of the said firms referred to below", that he was, therefore, "conducting simultaneous searches u/s 165 (1), Cr. P. C. at the following premises of the said firms on this day the 1st of January, 1968, immediately for seizure of the said documents and things to be found therein for purposes of the above investigation". He then set out the premises to be searched as--
''(1) Office premises of M/s Punj Sons (P) Ltd., M/s. Fedders Lloyd Corporation (P) Ltd., M/s Lloyd Electric & Engineering Co. at M-13, "Punj House", Connaught Place, New Delhi; and (2) Factory premises of M/s Punj Sons (P) Ltd., and M/s Fedders Lloyd Sales Corp. at Kalkaji, New Delhi."
He thus made a clear mention of the five firms and the office premises at Connaught Place and the factory premises at Kalkaji. Reading the document Annexure 'A' as a whole, it is clear that the first respondent did record in writing the places or premises to be searched. Shri Chari then pointed out that in the First Information Report, the alleged offence was stated to have been committed by M/s Lloyd Electric & Engineering Company, that in the earlier part of Annexure 'A' reference was made to the office premises at Connaught place and the Factory premises at Kalkaji as belonging to M/s Lloyd Electric & Engineering Company, while in the last part of Annexure 'A', the office premises at Connaught Place were stated as belonging to three of the five firms, viz., M/s Punj Sons (P.) Ltd., M/a Fedders Lloyd Corporation (P.) Ltd., and M/s Lloyd Electric and Engineering Co., and the factory premises at Kalkaji as belonging to M/s Punj Sons (P.) Ltd., and M/s Fedders Lloyd Sales Corporation at Kalkaji.
It is true that in mentioning the names of the firms to which each of the premises to be search belonged, the first respondent was nto quite consistent. But, in considering the question as regards compliance with the requirements of subsection (1) of Section 165 of the Criminal Procedure Code, the ownership and the names of the owners of the various premises to be searched are nto as material as the places or premises. The question is as to whether the premises to be searched were clearly mentioned in the record made by the police officers under subsection (1) of Section 165 of the Criminal Procedure Code. Reading Annexure 'A' (Annexure R-II) as a whole, it is clear that the premises to be searched under Section 165(1) were clearly stated to be the office premises of three of the five firms at M-13, Punj House, Connaught Place, and the factory premises of the other two of the five firms at Kalkaji. He also clearly set out the documents and things for which search was to be made. We cannot, therefore, accept the argument of Shri Chari that the factory premises was nto one of the _ premises to be searched mentioned in the record made by the first respondent under Sub-section (1) of Section 165 of the Criminal Procedure Code.
33. In the affidavits of the first respondent, it was stated that he had information to the effect that the five petitioner-concerns were all sister concerns of the Punj family, which was carrying on business under the name and style of and is controlling the said five concerns, that the said associate concerns were all run by the same family members, that the accounts were interlinked and the said firms were located in one premises at Connaught Place and, in fact, the same clerks used to attend to the work of all the firms, that the same was the information regarding the factory premises at Kalkaji, and that he had reasons to believe and was convinced that the documents and the things which were necessary for the purposes of his investigation into the alleged offence, which he was conducting, were to be found at the office premises and factory premises. Shri Chari argued that these reasons should have been given, if at all, in the record made under subsection (1) of Section 165 of the Criminal Proredure Code before the search was made, and that the giving of the said reasons in the affidavits at the present stage does nto amount to a compliance with the requirements of Sub-section (1) of Section 165 of the Criminal Procedure Code. There is force in this argument of Shri Chari. But, without taking into consideration the aforesaid reasons or grounds as given in the affidavits, we have come to the conclusion that the reason for his belief, the places or premises to be searched, and the documents and the tilings for which search was to be made were all clearly stated in the record, Annexure 'A' and that the requirements of Sub-section (1) of Section 165 of the Criminal Procedure Code were complied with fully, or at any rate substantially. We, therefore, reject the first contention urged by Shri Chari that the search and the seizure made by the first respondent in the factory premises at Kalkaji were illegal, and that they were made in violation of the provisions in Sub-section (1) of S. 165 of the Criminal Procedure Code.
34. The second contention of Shri Chari is that the search and the seizure made by the 2nd respondent in the office premises at Connaught Place were illegal on the ground that they were contrary to the mandatory provisions of Sub-section (3) of Section 165, Criminal Procedure Code, in that the first respondent did nto make any order in writing recording his reasons for his being unable to conduct the search himself in person, and in that the first respondent did nto deliver an order in writing to respondent No. 2 specifying therein the place to be searched and the things for which the search was to be made, and the second respondent did nto have any such order as is contemplated by section 165(3), Criminal Procedure Code, nor did he show any such order to the petitioner.
Sub-sections (2) and (3) of Section 165 provide as follows:
"(2) A police officer proceeding under Sub-section (1) shall, if practicable, conduct the search in person;
(3) if he is unable to conduct the search in person, and there is no other person, competent to make the search present at the time, he may after recording in writing his reasons for so doing require any officer subordinate to him to make the search, and he shall deliver to such subordinate officer an order; in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made; and such subordinate officer may thereupon search for such thing in such place." Sub-section (2) requires that it is the police officer who is proceeding under Sub-section (1) that should, if practicable, conduct the search in person, but, subsection (3) provides that if he is unable to so conduct the search in person, and there is no other person competent to make the search present at the time, the police officer may require any officer subordinate to him to make the search after recording in writing his reasons for so doing, and he should deliver to such subordinate officer an order in writing specifying the place to be searched and the thing for which the search is to be made. The argument of Shri Chari is that the first respondent did nto make any order in writing recording his reasons for his being unable to conduct the search himself in person, that he did nto deliver any order in writing to respondent No. 2 specifying therein the place to be searched and the things for which the search was to be made, and that the second respondent did nto have any such order with him, nor did he show any such order to the petitioners. Averments to that effect were made by the petitioner in the writ petition. (After considering the affidavit and counter-affidavits, their Lordships continued).
We, therefore, believe the version of the respondents that the first respondent did pass the order, Annexure 'A', under Section 165(3) on 1-1-1968 and that V. P. Punj was in fact, shown the the order of requisition under S. 165(3), Criminal Procedure Code, at the time of the search made by the second respondent in the office premises at Connaught Place.
35. The criticism that the first respondent did nto set out the reasons for nto conducting the search himself in person in the office premises at Connaught Place is again incorrect. (After repelling this contention their Lordships proceeded:) For the foregoing reasons, we hold that there is no substance in the second contention urged by Shri A. S. B. Chari on behalf of the petitioners.
36. The third contention of Shri A.S.R. Chari is that the searches and the seizures made by the two respondents were contrary to law and illegal for the reason that the copies of the record made under Sub-sections (1) and (3) of section 165, Criminal Procedure Code, were nto sent forthwith to the nearest Magistrate empowered to take cognizance of the offence as required by Sub-section (5) of Section 165 of the Criminal Procedure Code.
37. Section 165(5) runs as under:
"(5). Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the Magistrate, Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of costs".
Thus, Sub-section (5) requires that copies of the records made under Sub-section (1) and Sub-section (3) should be sent forthwith to the nearest Magistrate empowered to take cognizance of the offence. As observed by Newbould and B. B. Ghose, JJ. in Lal Mea v. Emperor, Air 1926 Cal 663, the provision in Sub-section (5) of Section 165, which was introduced by amendment of the Section in 1923, is intended as an extra safeguard to protect individuals against general or roving searches. The safeguard consists in that the search, when the record is sent forthwith to the Magistrate as provided in Sub-section (5) of Section 165. Criminal Procedure Code, would be in the knowledge of the Magistrate, who, if he considers it necessary, might even be present at the place of search and see that the search is made in accordance with law. It is thus an important and valuable safeguard, and the requirement in Sub-section (5) should be fulfillled by the police officer. If the police officer omits to send the record made under Sub-sections (1) and (3) forthwith to the nearest Magistrate, the search made by him would nto be one in accordance with the provision in the Section of the Code, and would, therefore, be irregular in law.
38. Here also, the question arises as to whether the provision in Sub-section (5) of Section 165 is mandatory or directory. It is true that the word "shall" is used in Sub-section (5). But, having regard to the object or the purpose of Section 165 as a whole and of the provision in Sub-section (5) of Section 165, the provision in Sub-section (5) of Section 165 cannto be regarded as mandatory. The entire object in conferring the power to search upon a police officer under section 165 is, as already stated, to enable the police officer to secure evidence regarding an offence which is being investigated by him. It is quite possible that there may be a situation in which, for reasons beyond his control, the police officer may nto be able to send the record forthwith to the nearest Magistrate. Even in such a case, the search would become bad in law, if the provision in Sub-section (5) is regarded as mandatory, and the entire purpose of conferring the power to search upon the police officer by Section 165 would be defeated. Such a contingency would nto have been intended by the legislature. Therefore, in our opinion, the provision in Sub-section (5) of Section 165, Criminal Procedure Code, has to be regarded as directory. This again does nto mean that the police officer has a discretion to fulfill or nto to fulfill the requirement of subsection (5). The said requirement has to be fulfillled by a police officer who seeks to exercise the power to search under Section 165, One consequence of the provision in Sub-section (5) being directory is, that in a case in which the police officer is nto able to fulfill the requirement in the Sub-section for reason beyond his control or for other justifiable reasons, the search would nto be regarded as bad in law merely because of the non-fulfilment of the requirement in Sub-section (5).
39. In the present case, it was alleged in the writ petition that the records made under Sub-sections (1) and (3) were nto sent to the nearest Magistrate who was empowered to take cognizance of the offence in question. In the affidavit of the first respondent, dated 14-1-1968, filed by him in the petition C. M. No. 113 of 1968 for directions, it was stated by him in paragraph 7 that copies of the records were made under Sub-sections (1) and (3) to "the Special Magistrate". The name of the Special Magistrate was not, however, stated. But, in the affidavit of the first respondent, dated 21-1-1968, filed by him in reply to the writ petition, it was stated in paragraph 9 that "copy of the record made under Section 165(3), Criminal Procedure Code and copies of the seizure list were also sent to the Magistrate, 1st Class, Delhi, though there was some delay as the same was sent on 10-1-1968 when the deponent returned from tour which he had to undertake on Government duty immediately after the search and seizure on 1-1-1968, though the record prepared under Section 165(1) Criminal Procedure Code, was sent to the Magistrate on the day of the search". Thus, the record made under Sub-section (1) was stated to have been sent to "the Magistrate" on 1-1-1968, while the record made under Sub-section (3) was stated to have been sent to "the Magistrate, 1st Class, Delhi", on 10-1-1968. But, it was stated by the 1st respondent in Annexure R-1, the order of requisition made by him under Sub-section (3) on 1-1-1968, that the record made under Sub-section (1) was sent to "the Magistrate, 1st Class, Delhi".
40-44. (Their Lordships considered the affidavits and counter-affidavits and proceeded:) 45-46. So far as the record made under Section 165(1) is concerned, it was sent to Shri R. N. Mehrotra, Magistrate, 1st Class, on 1-1-1968 itself. The criticism levelled against it by Shri A. S. R Chari is that while the First Information Report was forwarded to Shri M. S. Joshi, Special Judge, Delhi, the record made under Section 165(1) was sent to the Magistrate. 1st Class. Delhi, who was nto the Magistrate who could take cognizance of the offence which was being investigated into. In answer to the said criticism, Shri Prakash Narain, the learned counsel for the respondents, pointed out that the offence which was being investigated into was alleged to be under Section 120B, Indian Penal Code, read with Section 420, Indian Penal Code, and Section 5 (2) of the Prevention of Corruption Act No. Ii of 1947, that there is a distinction between the trial of an offence and the taking of cognizance of an offence, that under Sub-section (5) of Section 165, Criminal Procedure Code, the records made under Sub-sections (1) and (3) of Section 165 have to be sent to the nearest Magistrate empowered to take cognizance of the offence, that the offence under the above mentioned Sections of the Indian Penal Code and the Prevention of Corruption Act could be taken cognizance of by the Magistrate, 1st Class, Pelhi, and that, therefore, the record made under Sub-section (1) of Section 165 was sent forthwith to the nearest Magistrate empowered to take cognizance of the offence within the meaning of Sub-section (5) of Section 165. In our opinion, the said answer of Shri Prakash Narain has to be accepted.
47. The offence that was being investigated into was alleged to have been committed under Section 120B, Indian Penal Code, read with Section 420, Indian Penal Code, and Section 5(2) of Act Ii of 1947. So far as the offence under Section 420 of the Indian Penal Code is concerned, the Magistrate, 1st Class, Delhi, could take cognizance of the same by virtue of the provisions in Section 190 of the Criminal Procedure Code. But, under Section 7(1) of the Criminal Law Amendment Act, 1952, notwithstanding anything contained in the Code of Criminal Procedure or in any other law, the offence under Section 5 (2) of the Prevention of Corruption Act, and the offence of conspiracy (section 120B) to commit the offence under Section 5 (2) of the Prevention of Corruption Act. (sic) Under Section 8 of the Prevention of Corruption Act, the Special Judge may take cognizance of the offences under the Prevention of Corruption Act without the accused being committed to Mm for trial. The argument of Shri A. S. R. Chari is that since in the present case the offence under Section 120B, Indian Penal Code, read with Section 5(2) of the Prevention of Corruption Act is friable only by a Special Judge, who may also take cognizance of the said offence, the records made under Sub-sections (1) and (3) of Section 165, Criminal Procedure Code, should have been sent under Section 165(5), Criminal Procedure Code, to the Special Judge, and nto to the Magistrate, 1st Class, Delhi, This argument ignores the fact that Section 7(1) of the Criminal Law Amendment Act speaks of a "trial" by the Special Judge, while Sub-section (5) of Section 165, Criminal Procedure Code, refers to a Magistrate empowered "to take cognizance of the offence". It is true that Section 8 of the Criminal Law Amendment Act provides that the Special Judge may take cognizance of the offence without the accused being committed to him for trial. But, a plain reading of the said Section 8 shows that though a Special Judge may take cognizance of the offence without there being any committal proceedings, Section 8 does nto deprive a Magistrate of his power to take cognizance of such an offence under Section 190, Criminal Procedure Code, though he would nto have the power to try the offence. The scheme of the Criminal Procedure Code and the Various provisions therein relating to the taking cognizance of an offence and the trial of a criminal case, show that there is a distinction between the taking of the cognizance of an offence and the trial of the said offence. The stage of trial has to be distinguished from the stage of taking cognizance of an offence Under Section 7 (1) of the Criminal Law Amendment Act, the exclusive jurisdiction given to the Special Judge is only as regards the trial of the offence. As regards the jurisdiction to take cognizance of the offence, Section 8 no doubt conferred the same on the Special Judge but did nto make it the exclusive jurisdiction of the Special Judge. Therefore so far as the taking of cognizance of the offence is concerned, a Magistrate as well as the Special Judge can take cognizance of the offence. A similar view was taken by Gokhale and Miabhoy, JJ. in State v. Shankar Bhanrao, . On a careful and elaborate consideration of the various aspects and the various provisions in the Criminal Procedure Code bearing on this question, the learned Judges held. In terms of the head-note 'A' to the report-- "A magistrate, who is empowered to take cognizance of any offence upon a report in writing by any police officer, has gto jurisdiction to take action on a report submitted to him under S. 174, Criminal Procedure Code, by a police officer after completing investigation with reference to offences which are exclusively friable by a Special Judge under Section 7 (1) of the Criminal Law Amendment Act, 1952".
With respect, we agree with the reasoning of the learned Judges in the said decision. In the present case, the record made under Sub-section (1) of S. 165, Criminal Procedure Code, was sent to Shri R. N. Mehrotra, Magistrate, 1st Class. Delhi, on 1-1-1968. There was, therefore, full compliance with the requirement under Sub-section (5) of section 165, Criminal Procedure Code, so far as that record is concerned.
48. As regards the record made under Sub-section (3) of Section 165, Criminal Procedure Code, it was submitted to Shri N. L. Kakkar, Special Magistrate, 1st Class. Delhi, by the first respondent for the first time on 10-1-1968. The first respondent gave an explanation that 2-1-1968 was a holiday, that he left for Bomaby on 3-1-1968 on Government duty, and returned only in the afternoon of 9-1-1968, and that he submitted the record on 10-1-1968 to Shri N. L. Kakkar, Special Magistrate. Even if this explanation is accepted, the fact still remains that the record made under subsection (3) of Section 165, Criminal Procedure Code, was submitted to Shri N. L Kakkar, Special Magistrate, only on 10-1-1968 i. e. after the search was completed There is no explanation forthcoming as to why the record was nto sent on 1-1-1968 itself or at least before the search was completed. We have pointed out above that the sending of the record forthwith to the Magistrate under Sub-section (5) of Section 165 is an important and valuable safeguard against general or roving searches, and that the safeguards consist in that the Magistrate would, if necessary, be able to watch the search and satisfy himself that it is in accordance with law. Therefore, this safeguard and the very purpose of the provision in Sub-section (5) of Section 165 were defeated by the submission of the record made under Sub-section (3) of section 165 to the Special Magistrate on 10-1-1968 after the search was completed. It follows that the search made by the second respondent in the office premises in Connaught Place on 1-1-1968 was nto at all in accordance with the provisions of Sub-section (5) of Section 165, Criminal Procedure Code, and was, therefore, irregular in law.
49. We, therefore, hold that the search and the seizure made by the first respondent in the factory premises at Kalkaji on 1-1-1968 were quite in accordance With the provision in Section 165, Criminal Procedure Code, and were valid in law, and that the search made by the second respondent in the office premises at Connaught Place on 1-1-1968 was nto in accordance with the provisions of Sub-section (5) of Section 165, Criminal Procedure Code, and was, therefore, irregular in law.
50. The question then is as to what the effect of the said irregular search is? Shri A. S. R. Chart referred us to an observation of the Supreme Court in, , that -- "as the safeguards provided in Section 165 of the Code of Criminal Procedure were nto followed, anything recovered on a defective search of that kind must be returned."
In that case, the High Court of Madras struck down Sub-sections (2) and (3) of Section 41 of the Madras General Sales-tax Act, No. 1 of 1959, on the ground that they were unreasonable restrictions on the right to hold property and to carry on trade. The reasons given by the High Court were that there was no safeguard provided for search made under the said Sub-sections, and that Section 165 of the Code of Criminal Procedure did nto apply to searches made under Sub-section (2) of the said Act The Supreme Court held that the High Court was in error in assuming that Section 165 of the Code of Criminal Procedure would nto apply to searches under Sub-section (2) of the Act, and that the proviso to the Sub-section (2) itself provided clearly that all searches made under the sub-section, so far as may be, shall be made in accordance with the provisions of the Code of Criminal Procedure. Thus, the Supreme Court held that Section 165 and the safeguards therein apply to searches made under Sub-section (2) of the Madras General Sales-tax Act. Their Lordships then enumerated the safeguards provided in Section 165. It may be mentioned here that though their Lordships did nto specifically refer to Sub-section (1) of-section 165, the safeguards enumerated in the judgment were only those contained in Sub-section (1) of Section 165. Their Lordships then observed that the said safeguards apply to the search made under Sub-section (2) of the General Sales-Tax Act, and that therefore, the power to search given under Sub-section (2) was nto arbitrary and conse quently the restriction, if any, on the right to hold property and to carry on trade, by the search provided in Sub-section (2) cannto be said to be an unreasonable restriction keeping in view the object of the search, namely, prevention of evasion of tax. In that view, the question arose as to what order should be passed regarding the seizure made in that particular case by the departmental authorities under Sub-section (3) of section 41 of the Madras General Sales-tax Act. The High Court of Madras had held that the warrant for search issued in that case was bad for the reason that the Magistrate did nto apply his mind to the question of issuing the search warrant apart from its decision that Sub-sections (2) and (3) of Section 41 of the Madras General Sales-Tax Act, were ultra vires. The said conclusion of the High Court that the search was defective was nto challenged in the Supreme Court. Thus, the finding of the High Court that the search was defective remained. Since the Supreme Court upheld the validity of Sub-sections (2) and (3), and the search was held to be defective, the question arose as to what order should be passed in the appeals before the Supreme Court. In considering the said question, their Lordships made the observation relied upon by Shri A. S. R. Chari. It has to be noted that the effect of the non-fulfilment of the requirement In Sub-section (5) of Section 165, Criminal Procedure Code, was not, as such, in question before the Supreme Court in that case. Further, Sub-section (3) of section 41 of the Madras General Sales-tax Act provides that the officer who makes the search under Sub-section (2) may seize accounts, of the concerned dealer, and also that the said accounts, etc. so seized shall be retained by such officer so long as may be necessary for their examination and for any enquiry or proceeding under the Act. It was in those circumstances that their Lordships made the observation relied upon by Shri A. S. R. Chari.
51. The said decision of the Supreme Court cannot, therefore, be regarded as having laid down as a general rule that in every case of search in which the requirements in Sub-sections (1) and (5) of Section 165, Criminal Procedure Code, are nto fulfillled, the documents or things recovered in such defective search must necessarily be returned to the aggrieved party. It is true that in the case of such a defective search, the Court has the power to direct the return of documents or things seized during such defective search. But, it cannto be said that the Court must do so or is bound to do so in every case. The Court has to consider the circumstances of each and pass such order as it might consider proper.
52. As already pointed out above, it has been held in some decisions that even though a search is nto made in ac-cordance with the requirements of section 165 of the Code of Criminal Procedure, it does nto vitiate the seizure and does nto make the evidence of seizure inadmissible, and also that it does nto vitiate the trial or conviction if there is no miscarriage of justice or any prejudice to the accused. (See ; , (FB); 1953 Trav-Co. 466; (1963) 65 Pun Lr 1128; and (1962) 64 Pun Lr 403). So also, it has been held that the failure to comply with the pro-! visions in Section 165(5) does nto vitiate! the trial or conviction, if the failure to comply was bona fide and nto mala fide. . Thus, when in a case a defective search is made, and the case is still at the stage of investigation, and has nto reached the stage of trial or conviction, it is open to the Court to take into consideration the said circumstance, as well as the legal position that notwithstanding that the search is defective because of the failure to comply with the provision in Section 165(5), Criminal Procedure Code, the evidence of seizure would nto be inadmissible and the trial of the case would nto be vitiated, and to refuse to direct the return of the documents and things seized in the course of the said defective search, provided, of course, the court is satisfied that the search and the failure to comply with Section 165(5), Criminal Procedure Code, were nto mala fide.
53. In the present case, no doubt, no explanation is forthcoming as to why the record made under Sub-section (3) of Section 165, Criminal Procedure Code, was nto sent forthwith to the nearest Magistrate on 1-1-1968 itself, and the explanation given by the first respondent was only as regards his absence from Delhi from 3-1-1968 till 9-1-1968. But, there is nothing on the record which shows that the said failure to comply with the provision in Section 165(5) Criminal Procedure Code, was mala fide. Further, in the present case, the investigation is nto yet completed, and it is represented by the learned counsel for the respondents that the documents and things seized from the office premises at Connaught Place also are required , the purposes of the investigation. We are, therefore, of the opinion that on the facts of this case, the documents and things need nto be directed to be returned to the petitioners, in the exercise of our discretion under Article 226 of the Constitution. A similar view was taken by a Division Bench (I. D. Dua, C. J, and S. N. Shankar, J.) of this Court, to which one of us was a party, in P. Dharam Singh & Co. (P) Ltd. v. Inspector-General of Police, (1968) Cr. Writ No. 83 of 1967 (Delhi), On the ground that the investigations into the complaint registered by the police were pending, the Division Bench, in their judgment, dated 19-2-1968, declined to exercise their discretion to accede to the prayer of the petitioner for a direction to the respondents in that case to return the documents etc. seized from the petitioner-company.
54. For the above reasons, the five writ petitions fail, and are dismissed.
RGD
55. Petitions dismissed.