Gauhati High Court
Chilaram Narzary vs The State Of Assam And 8 Ors on 7 January, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/13
GAHC010059992021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2180/2021
CHILARAM NARZARY
S/O LT. SACHINDRA NARZARY, R/O MAIBONG NWGWR, WARD NO. 5
KOKRAJHAR, PIN-783370
VERSUS
THE STATE OF ASSAM AND 8 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
DEPTT. OF HOME DISPUR, GUWAHATI-6
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ASSAM POLICE HEADQUARTERS ULUBARI
GUWAHATI-7
3:THE INSPECTOR GENERAL OF POLICE
OFFICE OF THE I.G.P. (BTAD) KOKRAJHAR
ASSAM
4:THE SUPERINTENDENT OF POLICE
OFFICE OF THE SUPERINTENDENT OF POLICE KOKRAJHAR
ASSAM
5:THE OFFICER IN CHARGE
KOKRAJHAR POLICE STATION
KOKRAJHAR
6:THE INVESTIGATION OFFICER
KOKRAJHAR POLICE STATION CASE NO. 775/2020 THROUGH THE
OFFICER IN CHARGE
KOKRAJHAR POLICE STATION
KOKRAJHAR
7:BINOD GOGOI
Page No.# 2/13
S/O BIMAN GOGOI
AXOM SAMAJ KALYAN SANGATHAN
MAHAJAN PATH
JYOTI KUCHI
ADAGUDAM
GUWAHATI-781034
8:THE MANAGER AXIS BANK
KOKRAJHAR BRANCH
WARD NO. 5 JB ROAD KOKRAJHAR-783370
9:THE MANAGER STATE BANK OF INDIA
COURT PARA KOKRAJHAR BRANCH
KOKRAJHAR-78337
Advocate for the Petitioner : MR. A K BHUYAN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 07-01-2022 Heard Mr. AK Bhuyan, learned counsel for the petitioner and Mr. B Deuri, learned counsel for the respondent Nos.1 to 6 and Mr. M Sharma, learned counsel for the respondent No.8
2. This writ petition under Article 226 of the Constitution of India is filed challenging the freezing of the bank account of the petitioner by the respondent Nos.5 and 6.
3. The issue involved in the instant writ petition relates to the legality of the exercise of power by the Investigating officer to seize/freeze the bank account of the petitioner in terms with section 102 of Code of Criminal Procedure (Cr.P.C).
4. The brief facts of the instant case is that the petitioner is a Page No.# 3/13 contractor by profession and is involved in execution of various works of the government. On 21.12.2020 an FIR was lodged by the respondent no.7 claiming himself to be belonging to Assam Samaj Kalyan Sangathan against the petitioner before the respondent No.5 alleging inter alia that the petitioner got work order without any proper procedure and misappropriated the money in collusion with some officials. It was also alleged that the petitioner had the blessing from some political leaders and the petitioner had cheated the sports department of around 15 crores by preparing wrong documents and getting money. It was also alleged that without supplying the items the petitioner submitted the bills and it was processed by the officials and he got part payment also though as per the tender condition, if the petitioner did not complete supply within 60 (sixty) days, the tender should be deemed to be automatically cancelled, it was also alleged that if investigation is carried out properly, it would be found that many other works in other department the petitioner had done similar wrong doings by misappropriation of public money by cheating the government. It was also alleged that many other contractors are misappropriating the government money by cheating would come into light if the detailed investigation is done.
5. On the basis of the said FIR Kokrajhar PS Case No.775/2020 was registered under Section 406/420/408/409 IPC by the respondent No.6.
6. Thereupon the petitioner was informed vide a communication dated 16.03.2021 by the respondent No.8 that the petitioners' bank accounts have been freezed on the basis of a communication received from Kokrajhar PS in respect to Kokrajhar PS case No.775/2020 vide letter dated 25.02.2021. It is also been brought to the attention of this Court that the respondent Nos.5 and 6 have issued similar communications to the Page No.# 4/13 respondent No.9 for which the petitioners bank account maintained with the respondent No.9 have also been frezeed. It is against the freezing of the bank accounts by the respondent Nos.8 and 9 on the basis of the instructions received from the respondent Nos.5 and 6 the petitioners have approached this Court under article 226 of the Constitution of India.
7. At the time when the writ petition was moved, this Court had vide an order dated 07.04.2021 granted liberty to the petitioner to file an appropriate application before the Chief Judicial Magistrate, Kokrajhar whereafter the Chief Judicial Magistrate was directed to pass appropriate order if necessary by directing execution of the bond by the petitioner but after hearing the concerned investigating officer. It was also made clear by this Court that the Chief Judicial Magistrate shall pass an appropriate order within a period of 12 (twelve) days from the date of filing of such application.
8. The petitioner thereafter on the basis of the order dated 07.04.2021 passed by this court filed an application before the Chief Judicial Magistrate, Kokrajhar requesting for defreezing the bank account of the petitioner maintained with the respondent Nos.8 and 9. Vide an order dated 27.04.2021 the said prayer made in the application before the Chief Judicial Magistrate was rejected primarily on the ground that the accused was reluctant to cooperate with the investigating agency and time is required to complete investigation of the case.
9. Persuant thereto, the respondent No.4 had filed an affidavit-in- opposition wherein reference was made to the complaint filed by the respondent No.7. It was mentioned in paragraph 7 of the said affidavit-in- opposition that the petitioner was served notice for appearance in connection with Kokrajhar PS Case No.775/2020 but he neither appeared in the police station nor he cooperated with the investigation. In paragraph Page No.# 5/13 11 of the said affidavit-in-opposition it has been mentioned that the actual facts will be divulged after completion of the investigation of the case and all acts have been done under the existing rule of law and as such, there was no violation of law. It is however, relevant to mention that there is no mention in the affidavit-in-opposition or any materials have been placed by the respondent authorities to bring on record before this Court as to why the bank accounts of the petitioner maintained with the respondent Nos.8 and 9 were seized. It is also relevant herein to mention that in paragraph No.26 of the writ petition it has been specifically mentioned that the accounts were freezed without compliance to Section 102(3) of the Cr.P.C. and there is no denial to the said aspect of the matter in the affidavit in opposition by the respondent authorities.
10. I have heard the learned counsel for the petitioner at as well as Mr. B Deuri, the learned junior Government Advocate.
11. Mr. AK Bhuyan, learned counsel for the petitioner submits that the freezing of the bank account by the respondent Nos.8 and 9 at the behest of the respondent Nos.5 and 6 have been done without compliance to the provisions of Section 102(3) Cr.P.C. which was mandatory. He further submits that unless and until there has been any comission of an offence in respect to the bank accounts, the question of exercising the jurisdiction under section 102 Cr.P.C does not arise and as such the freezing of the bank account without formation of an opinion that an offence had been committed in respect to the bank account on the face of it is illegal and without jurisdiction. He further submits that a perusal of the affidavit-in- opposition filed by the respondent No.4 would also go to show that there is no mention whatsoever as regards the justification for the purpose of freezing of the bank account. Merely saying that the freezing of the bank accounts are necessary for the purpose of conducting a fair investigation Page No.# 6/13 cannot be a ground for exercise of jurisdiction under section 102 Cr.P.C is the submission of the learned counsel for the petitioner
12. On the other hand, Mr. B Deuri, learned counsel for the respondent submits that the bank accounts have been freezed as the same is essential for a full and fair investigation in respect to the offence. He further submits that the said bank accounts have been seized as the petitioner had not cooperated with the investigation in spite of issuance of notice to the petitioner, the petitioner has not appeared before the Investigating officer. He further submits that if the bank account are de-freezed the amounts lying in the bank accounts would be used for any other activities and the investigating authority have reasons to believe that the said amount lying in the bank account might go to some wrong hands and as such, submitted that no interference ought to be made to the freezing of the bank accounts by the respondent Nos.8 and 9 at the behest of the respondent Nos.5 and
6.
13. I have heard the learned counsel for the parties at length and have perused the records.
14. For the purpose of deciding the question as to whether the exercise of jurisdiction under section 102 Cr.P.C was done in the manner envisaged under law, the said section is quoted herein below:
Section 102 in The Code Of Criminal Procedure, 1973
102. Power of police officer to seize certain property.
(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
(2) Such police officer, if subordinate to the officer in charge of a Page No.# 7/13 police station, shall forthwith report the seizure to that officer.
(3) 1 Every police officer acting under sub- section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same.]
15. Section 102 Cr.P.C. is a part of the provisions under Chapter VII "Processes to compel the production of things", Part-A of the said chapter reads with "Summons to Produce", Part-B deals with "Search Warrants", Part-C deals with the "General provisions relating to searches" and Part-D of which section 102 is the first section falls under the part described as "Miscellaneous." The marginal note of Section 102 says "Power of police officer to seize certain property".
16. The scope and applicability of Section 102 Cr.P.C is no more res- integra. A plain reading of Sub-section (1) of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of an offence. The legislature having used the expression "any property" and "any offence" had made the applicability of the provisions wide enough to cover offences created under any act. But the two pre-conditions of the applicability of Section 102(1) Cr.PC are that it must be "a property" and secondly, "in respect of the said property there must have been suspicion of commission of an offence." In this view of the matter the two further questions that may arise for consideration are whether the bank account of an accused can be said to be a property within the meaning of sub-section (1) of section 102 Cr.P.C., and secondly, whether circumstances exists, Page No.# 8/13 creating suspicion of the commission of an offence in relation to the same.
17. In this regard the Supreme Court in the case of Teesta Atul Setalvad vs The State Of Gujarat reported in (2018) 2 SCC 372 in paragraph Nos.17 and 18 observed as follows:
17. The sweep and applicability of Section 102 of the Code is no more res integra. That question has been directly considered and answered in the case of State of Maharashtra v. Tapas D Neogy. The Court examined the question whether the police officer investigating any offence can issue prohibitory orders in respect of bank accounts in exercise of power under Section 102 of the Code. The High Court, in that case, after analysing the provisions of Section 102 of the Code had opined that bank account of the accused or of any relation of the accused cannot be held to be "property" within the meaning of Section 102 of the Code. Therefore, the Investigating Officer will have no power to seize bank accounts or to issue any prohibitory order prohibiting the operation of the bank account. This Court noted that there were conflicting decisions of different High Courts on this aspect and as the question was seminal, it chose to answer the same. In paragraph 6, this Court noted thus:
"A plain reading of sub-section (1) of Section 102 indicates that the Police Officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression „any property‟ and „any offence‟ have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be „property‟ and secondly, in respect of the said property there must have been suspicion of commission of any offence. In this view of the matter the two further questions that arise for consideration are whether the bank account of an accused or of his relation can be said to be „property‟ Page No.# 9/13 within the meaning of sub-section (1) of Section 102 of the Cr.P.C. and secondly, whether circumstances exist, creating suspicion of commission of any offence in relation to the same..........."
18. After analysing the decisions of different High Courts, this Court in paragraph 12, expounded the legal position thus:
"Having considered the divergent views taken by different High Courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be „property‟ within the meaning of the said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the Courts in concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the Courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relations is „property‟ within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court of Bombay committed error in holding that the police officer could not have seized the bank account Page No.# 10/13 or could not have issued any direction to the bank officer, prohibiting the account of the accused from being operated upon."
After this decision, there is no room to countenance the challenge to the action of seizure of bank account of any person which may be found under circumstances creating suspicion of the commission of any offence.
18. The Supreme Court of India further in the case of Nevada Properties Pvt Ltd Vs. State of Maharashtra , reported in 2019 (20) SCC 119 in paragraphs No.29, 30 and 31 observed as follows:
29. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure.
30. Equally important, for the purpose of Criminal Appeal arising out of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the Page No.# 11/13 charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code.
31.The expression 'circumstances which create suspicion of the commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not 'any property' is required to be seized. The word 'suspicion' is a weaker and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an adjudicator or a decision maker. This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences.
19. A reading of the above quoted observations of the Supreme Court would show that the investigating officer if is in possession of the materials pointing out circumstances which creates suspicion of the commission of an offence would have the power to legitimately seize the bank accounts after following the procedure prescribed in sub-section (2) and (3) of Section 102 Cr.P.C. It is the mandatory requirement of law that after the Investigating Officer issues instructions to seize the bank accounts it has to be reported to the Magistrate concerned as is required in compliance to sub-section (3) of section 102 Cr.P.C. It is also relevant herein to take note of that the police officer in course of investigation can seize any property under section Page No.# 12/13 102 Cr.P.C if such property is alleged to be stolen or is suspected to be stolen or the object of the crime under investigation or has direct link with the commission of an offence for which the police officer is investigating into. A property not suspected to commission of an offence which is being investigated into by the police officer cannot be seized under section 102 Cr.P.C., inasmuch as the police officer can seize such property which is covered by section 102(1) Cr.P.C., and no other.
20. A perusal of the writ petition and the materials brought on record as well as also the affidavit-in-opposition there is nothing on record to show that the bank accounts are an object of crime under investigation or has direct link with the commission of offence for which the police officer is investigating. Under such circumstances the said bank account cannot be said to be a property within the ambit of section 102(1) of the Cr.P.C., and as such, seizing the said bank accounts of the petitioner in the facts of the instant case cannot be said to be legal exercise of jurisdiction and authority by the concerned respondent authorities and consequently the freezing of the bank account of the petitioner maintained with the respondent Nos.8 and 9 by the respondent Nos.5 and 6 is interfered with.
21. It is also relevant herein to take note of that the compliance with section 102(3) Cr.P.C is mandatory and as there had been no denial to the allegation that respondent authorities had not complied with the provisions of section 102(3) of the Cr.P.C., it would be assumed that the said provisions have not been compiled with and accordingly, the action on the part of the respondent Nos.5 and 6 to freeze the bank account of the petitioner and thereafter not complying with the provisions of section 102 Cr.P.C is interfered with.
22. In view of the above observations, the bank accounts of the petitioner maintained with the respondent Nos.8 and 9 are hereby Page No.# 13/13 defreezed and the petitioner is permitted to operate the said bank accounts. It is however, clarified that during the course of the investigation in respect to Kokrajhar PS case No.775/2020 if it is found that there is some nexus of the bank accounts of the petitioner with the commission of the offence the respondent Nos.5 and 6 shall be at liberty to freeze the bank account of the petitioner subject to compliance of the provisions of law. Needless to mention that freezing of bank accounts amounts to irretrievably effecting the business of the contractor like the petitioner and as such it is expected that the respondent Nos.5 and 6 shall take due care while exercising their jurisdiction within the confines of law.
23. With the above observations, the writ petition stands disposed of.
JUDGE Comparing Assistant