Karnataka High Court
Praveen Tikare vs The State Of Karnataka on 7 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.8016/2015
BETWEEN:
PRAVEEN TIKARE
S/O NETAJI TIKARE
AGED ABOUT 40 YEARS
R/AT NO.6/1, 2ND FLOOR
MADAVI SIRUR PARK ROAD
SHESHADRIPURAM ROAD
BENGALURU-560 020.
... PETITIONER
(BY SRI. R B DESHPANDE, ADV.)
AND:
THE STATE OF KARNATAKA
BY CHITRADURGA TOWN POLICE STATION
CHITRADURGA-577 501
... RESPONDENT
(BY SRI.H.S.CHANDRAMOULI, SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C., PRAYING TO QUASH THE ORDER DATED
05.08.2015 PASSED BY THE PRL.DISTRICT AND SESSIONS
JUDGE, CHITRADURGA IN CR.R.P.NO.24/2015
CONFIRMING THE ORDER DATED 15.04.2015 PASSED BY
THE PRL.CIVIL JUDGE AND J.M.F.C. CHITRADURGA IN
2
C.C.NO.149/2014 AND BE PLEASED TO ALLOW THE
APPLICATION FILED U/S.457 CR.P.C. AS PRAYED AND
PERMIT THE PETITIONER TO OPERATE HIS S.B. ACCOUNT
NO.00201024771 OF ICICI BANK, CHITRADURGA BRANCH.
THIS CRIMINAL PETITION IS COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Petitioner is aggrieved by the orders passed by the courts below dismissing the application filed by him under Section 457 of Cr.P.C.
2. Heard learned counsel for the petitioner and the learned State Public Prosecutor appearing for respondent and perused the records.
3. The brief facts necessary for adjudication of the controversy is that the Cluster Branch Manager of ICICI Bank Limited, Chitradurga branch lodged a complaint before the Inspector of Police, Chitradurga Town Police Station alleging manipulation of jewel loan account at 3 Chitradurga Branch. The material allegations made in the complaint read as follows:
In view of the above, we suspect that some of the customers had not come to the branch for availing the said jewel loans. However, their documents were supposedly manipulated and few of them would have even colluded with the above said persons. Further, signature of the jewel appraiser also appears to have been manipulated. We also find that documents have been fabricated and used to avail the said 34 loans, presumably even without creating adequate security for the Jewel Loans."
4. A reading of the complaint indicates that the manipulation and fabrication of jewel loan accounts had taken place and it is alleged that the petitioner herein as well as the other employees working in the Bank were privy to the said offence. During the course of investigation, the Investigating Officer issued prohibitory order to the Manager of the aforesaid Bank directing the 4 Bank Manager of ICICI Bank to freeze the Bank account bearing No.000201024771 standing in the name of the petitioner. Pursuant to the said letter, the Bank Manager froze the account.
5. Learned counsel appearing for the petitioner, placing reliance on the decision of this Court in the case of SMT.LATHIFA v/s THE STATE OF KARNATAKA, HOME DEPARTMENT, REPRESENTED BY ITS SECRETARY AND OTHERS reported in ILR 2012 KAR 2220 and with reference to Section 102 of Cr.P.C., would contend that the Investigating Officer has failed to comply with the mandatory requirements prescribed under Section 102 of Cr.P.C. The Investigating Officer did not satisfy himself that the account maintained by the petitioner had any nexus to the offence alleged by the complainant. No material has been produced before this Court to show that the said bank account has any nexus with the commission of alleged offence. Under the said 5 circumstance, the action taken by the Investigating Officer to freeze the Savings Bank account of the petitioner, wherein salary and pension benefits of the petitioner are credited, is wholly illegal and abuse of power vested with the Investigating Officer.
6. Learned SPP appearing for the respondent has argued in support of the impugned action contending that the alleged offences having been committed by the petitioner who was an employee of the Bank, the Investigating Officer has rightly exercised his jurisdiction to freeze the Savings Bank account of the petitioner. Further he submitted that, since the property was not produced before the Court, application under Section 457 of Cr.P.C. itself was incompetent and therefore, there is no reason to interfere with the concurrent orders passed by the Courts below.
7. There can be no quarrel with the proposition of law that Bank account is also "property within the meaning 6 of Section 102 of Cr.P.C". As per Section 102 of Cr.P.C., the Police Officer investigating the case is empowered to freeze property alleged or suspected to have been stolen or which may be found under the circumstance, which create suspicion of commission of any offence. In the instant case, the Investigating Officer proceeded to freeze the Bank account of the petitioner without there being any material to show that the Bank account maintained by the petitioner had any nexus with the offences alleged in the FIR. As already stated above, the allegations made in the complaint are that the jewel loan accounts were manipulated by Bank employees in connivance with the borrowers. There is nothing in the said complaint to show that the embezzled amount or the sanctioned loan amount was either siphoned of by the petitioner or that the same was credited to the Savings Bank account standing in the name of the petitioner. In the absence of any such material, there was absolutely no basis for the 7 Investigating Officer to freez the bank account of the petitioner.
8. Dealing with the procedure to be followed by the Investigating Officer while taking recourse to Section 102 of Cr.P.C., this Court in the decision referred above, at paragraphs 11 and 12 therefore has held as under:
"11. It is thus clear that the bank account of the accused or any of his relations is 'property' within the meaning of Section 102 Cr.P.C. and the Police Officer in course of investigation, can seize or prohibit operation of the said account, if such assets have direct link with the commission of the offence. For the application of the Section, the basic requirements are that the properties sought to be seized or frozen must be either stolen properties or they should have been found to have some nexus with the alleged offence which is under investigation of the Police Officer concerned. The provisions of Section 102 Cr.P.C. are mandatory. Mere allegation of the prosecution, that the property i.e., bank 8 account is a sequel to the discovery of commission of offence, is not sufficient to attract Section 102 of Cr.P.C. Following the procedure as provided under Section 102 is mandatory. If the Police Officer who has seized the bank account is subordinate officer/incharge of a Police Station, he shall forthwith report the seizure to his higher officer. He should inform the concerned Magistrate forthwith regarding the prohibitory order and he should also give notice of seizure to accused and allow him/her to operate bank account subject to his/her executing bond undertaking to produce the amount in Court as and when required.
12. In the present case, the fourth respondent has not produced any materials till this day to show that the bank account has any nexus with the commission of the alleged offence. It is evident that respondents have not issued a notice of seizure to the petitioner to enable her to operate the bank account subject to her executing bond undertaking to produce the amount in the 9 Court as and when required. Admittedly, the third respondent has not reported the seizure of the bank account to the Magistrate having jurisdiction. Thus, it is clear that respondents have not complied with the mandate contained in Section 102 of the Cr.P.C. Therefore, the direction of the fourth respondent in freezing the bank account of the petitioner is illegal."
9. The proposition of law laid down in the above decision, in my view, squarely applies to the facts of this case. In the absence of any material to show that the bank account standing in the name of the petitioner has any nexus with the alleged offence, the Investigating Officer could not have assumed jurisdiction to proceed against the said bank account. In that view of the matter, the Courts below have failed to consider this aspect and rejected the application filed by the petitioner solely on the ground that the petitioner was also involved in the commission of alleged offences. The impugned orders are contrary to Section 102 of Cr.P.C. and the 10 procedure delineated by this Court. In view of the above, the impugned orders cannot be sustained.
10. The argument of the learned SPP that an application under Section 457 of Cr.P.C. was not tenable as the seized property was not produced before the Court is also liable to be rejected. Section 457 of Cr.P.C. reads as under:
"Sec.457- Procedure by police upon seizure of property - (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
11(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person whom may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
11. As held in the above decision, it is mandatory on the part of the Investigating Officer to report the seizure or freezing order made by him to the Magistrate, forthwith.
12. For the above reasons, petition is allowed. The order passed by the Investigating Officer freezing the Savings Bank account bearing No. 000201024771 of ICICI Bank, Chitradurga Branch under Section 102 of Cr.P.C. is hereby set aside. The Investigating Officer is 12 directed to defreeze the Savings Bank Account of the petitioner, forthwith.
Sd/-
JUDGE mpk/-* CT:bms