Madhya Pradesh High Court
Vijay Prakash Rane vs Superintendent Of Special Police ... on 19 June, 2017
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
-1-
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B: HON'BLE SHRI JUSTICE P.K.JAISWAL
& HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
WRIT PETITION NO.1981/17
VIJAY PRAKASH RANE
Vs.
SUPERINTENDENT OF SPECIAL POLICE ESTABLISHMENT,
INDORE & OTHERS
Shri Ajay Mishra, Advocate for
the petitioner.
Shri Anand Soni, Advocate for
the respondent No.1.
O R D E R
(Passed on 19.06.2017) Per Rajeev Kumar Dubey, J:
This petition has been filed under Article 226 of the Constitution of India seeking a direction to the respondents to remove the restrictions in operating the petitioner's saving bank account No.63042261716 and current account No.34390261500 in the State Bank of India situated at Scheme No.54, AB Road, Indore and saving account No.30009871578 in the State Bank of India, City Centre, Gwalior and to allow encashment of cheques issued by -2- the petitioner and permit to withdraw money from the bank accounts.
2. Brief facts of the petition are that respondent No.1 S.P, Special Police Establishment, Lokayukta, Indore registered crime No.0/75/2016 for the offences punishable under sections 13(1) (e) read with section 13(2) of the Prevention of Corruption Act, 1988 against the brother of the petitioner viz. Anand Prakash Rane, the then Executive Engineer, Public Works Department, Indore on the information that he earned many immovable and movable properties by misusing his post by unfair means and deposited unaccounted money in the bank in his name and also in the name of his relatives. During Investigation respondent Inspector Special Police Establishment, Lokayukta, Indore Mahesh Suneya moved an application dated 02.12.2016 under section 93 of the Cr.P.C before Sessions Judge/In- charge Special Judge (P.C Act), Indore seeking search warrants for searching the house of accused Anand Prakash Rane and his brother (petitioner) situated at Flat No.606, A-2, Balaji Heights, Mahalaxmi Nagar, Indore. During search he seized the -3- pass books of aforesaid bank accounts and also prohibited the operation of that accounts. Being aggrieved by the aforesaid action of the respondent, petitioner has filed this petition.
3. Learned counsel for the petitioner submitted that petitioner is engaged in the business of construction and other private business since 1994-95. Petitioner is a registered contractor in the Public Works Department (PWD), State of M.P since 2006 and has been doing the construction business under various divisions of the Public Works Department and also taking sub contract work from other contractors. Petitioner has got registration of his proprietorship firm viz. J.V Construction under the P.W.D. Since last ten years petitioner has executed various works under various divisions of the PWD. The payments of various works executed by the petitioner under the PWD have always been made to the petitioner through account payee cheques and amounts of bills for the executed works have been transferred in the aforesaid petitioner's bank accounts through RTGS, therefore, the source of amounts deposited in the petitioner's bank accounts -4- are known and valid and have no concern with the petitioner's brother or any other person. Petitioner has issued certain cheques in favour of different agencies to make their due payments but owing to freezing of bank accounts the payment against the said cheques issued by the petitioner have not been made by the bank. The concerned agencies have issued notice to the petitioner with respect to dishonor of cheques. Petitioner also served notice dated 9.2.2017 to respondent to remove the prohibition imposed in operating his bank accounts but respondents did not issue any instruction to remove said prohibition in operating his bank accounts. Respondents without any evidence wrongly freezed petitioner's bank accounts in arbitrary manner which amounts to violation of Articles 19 and 21 of the Constitution of India. The provisions of the Prevention of Corruption Act could not have been invoked against the petitioner as he has never been a public servant and he is an income tax payee citizen of India, hence prayed for direction to remove the prohibition imposed -5- in operating the bank accounts of the petitioner.
4. Learned counsel for the respondent opposed the prayer and submitted that on the information that petitioner's brother Anand Prakash Rana, the then Executive Engineer of the Public Works Department, earned many immovable and movable properties by misusing his post by unfair means and deposited unaccounted money in the bank in his name and also in the name of his brother Anand Prakash Rana, the petitioner and other family members. So after taking search warrant for searching the house of accused Anand Prakash Rane and his brother (petitioner) situated at Flat No.606, A-2, Balaji Heights, Mahalaxmi Nagar, Indore.under section 93 of the Cr.P.C from sessions judge/in charge Special Judge (P.C Act), he seized suspected unaccounted money deposited in aforesaid accounts and other properties. Investigation is on and if during preliminary stage of investigation the petitioner is permitted to operate his bank accounts it would affect the investigation, hence prayed for rejecting the prayer to release the pass books of -6- aforesaid bank accounts and also to remove the prohibition imposed in operating that accounts.
5. Heard learned counsel for the parties and perused the record.
6. It appears that respondents freezed petitioner's account after getting search warrant from the Special Court (P.C Act) under section 102 Cr.P.C. According to section 102 (3) Cr.P.C every Police officer after taking search warrant from Special Judge (PC Act) forthwith report the seizure to the Magistrate having jurisdiction. According to section 457 Cr.P.C whenever the seizure of property by any Police Officer is reported to a Magistrate under the provisions of the Code and such property is not produced before a criminal Court during an enquiry 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 so petitioner is having a remedy to file appropriate application before the Special Judge against -7- the freezing of his accounts. Since an alternative remedy is available to the petitioner, therefore, this petition is not maintainable.
7. Even otherwise, the Apex court in the case of State Of Maharashtra vs Tapas D. Neogy reported in reported in (1999) 7 SCC 685 held as under:-
"The bank account of the accused or any of his relations is "property"
within the meaning of section 102 Cr.P.C 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 which the police officer is investigating into."
In the wake of this judgment, it can be held that the officer concerned would definitely have the power of seizure of the bank account of any of the accused or of his relatives for the same being property within the meaning of section 102 of the Code of Criminal Procedure, and therefore, it would not be correct to say that the officer concerned would have no authority under section section 102 of the Code of Criminal Procedure even if such assets have direct -8- links with the commission of offence for which investigation is going on.
8. Learned counsel for the petitioner also contended that investigating agency has not followed the proper procedure of law in freezing the bank accounts of the petitioner. The investigation is conducted by the Inspector who is not empowered to freeze the bank accounts according to provisions of section 17 and 18 of the Act. Besides this, petitioner is facing financial difficulty to meet out the day to day expenses and also contended that petitioner is not a public servant, therefore, provisions of the Prevention of Corruption Act would not apply against the petitioner. This argument also has no force. It appears from the record that respondent S.P, Lokayukta Indore authorized Inspector Mahesh Suneya, Investigating officer to investigate the crime. The bank account of relative of accused can be freezed during the investigation. The Apex court in the case of State Of Maharashtra vs Tapas D. Neogy(supra) also observed as under :-
"Corruption in public offices has become so rampant that it has become difficult to cope up with the same.-9-
Then again the time consumed by the courts on concluding the trials is another factor which should be borne in mind in interpreting the provisions of Section 102 CrPC 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 public officer. Under the Prevention of Corruption Act, 1988, in the matter of imposition of fine under sub section (2) of Section 13, the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of sub section (1) of Section 13, the pecuniary resource or property for which the accused person is unable to account satisfactorily. The interpretation given in respect of the power of seizure under section 102 CrPC is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act."-10-
9. In support of his contentions learned counsel of the petitioner has also placed reliance over the Apex Court decision in the case of DSP, Chennai vs. K.Inbasagaran reported in (2006) 1 SCC 420, however, the facts of that case are distinguishable as in that case Apex Court in an appeal after evaluating the all evidence of both the parties held that the public servant husband explained that the whole money which had been recovered from the house of accused did not belong to him but to his wife on the basis of income tax returns filed by the wife of accused while in this case investigation is going on regarding seized property. On the other hand Hon'ble Supreme Court in the case of State of Tamil Nadu vs. N. Suresh Rajan, 2014 AIR SCW,942 has observed thus:
"The property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee. In case this proposition is accepted, in our opinion, it will lead to disastrous consequences. It will give an opportunity to the corrupt public servant to amass property in the name of known persons, pay income tax on their behalf and then be out from the mischief of law.-11-
10. Learned counsel for the petitioner has also placed reliance over the Apex Court decision in the case of Akhilesh Yadav vs. Vishwanath Chaturvedi and others reported in (2013) 2 SCC 1. Although in this case the Court dropped the CBI enquiry against Smt.Dimple Yadav as she was not a public servant but in that case the Court did not held that the bank accounts of relative of accused cannot be seized by the investigating agency during investigation of the case registered against public servants under the provisions of the Prevention of Corruption Act.
11. Learned counsel of the petitioner has also placed reliance over Orissa high judgment passed in Nabapravat Trust vs. State of Orissa reported in 94 (2002) CLT
41. In this case the Court after examining the account and other evidence found that there was no link between the disproportionate assets acquired by the accused-public servant and the amount deposited in the accounts operated by the Trust. While in this case investigation is going on to find out the link. He has also placed reliance over the decision of the -12- Madras High Court in the case of B.Ranganathan vs. State and others reported in 2003 CRLJ 2779 wherein the Court held that according to provisions of section 18 of the Prevention of Corruption Act without authorization by S.P., Inspector has no power to freeze the bank account. But in section 18 of the Prevention of Corruption Act there is no provision regarding freezing of the bank account. The Apex Court in the case of State Of Maharashtra vs Tapas D. Neogy (supra) held that "we have analyzed the aforesaid provision of the Prevention of Corruption Act, 1988 and in our view the object engrafted in the different provisions of the Prevention of Corruption Act, 1988 has to be taken into account while interpreting the provisions contained in Section 102 of the Code of Criminal Procedure". There is no specific provision in the Prevention of Corruption Act, 1988 itself as to how or in what manner the said property can be dealt with by the Investigating Officer even if he comes to the conclusion that the assets in the possession of the `public servant' is directly linked with the commission of the -13- offence. It is therefore, only by applying the provisions of Section 102 of the Criminal Procedure Code if the said provision is held to be conferring power of seizing and or prohibiting operation of bank account, the Investigating Officer can pass order of seizing the bank account or issue prohibitory orders to the banks not to allow the account holder to operate the account. Learned counsel for the petitioner also placed reliance over the Apex court judgment in the case of State of Haryana and others vs. Bhajanlal and others reported in 1992 Supp (1) SCC 335 and Sujit Biswas vs state of Assam in Criminal Appeal no.1323 of 2011 but this case also does not help the applicant much.
12. From the above discussion it is clear that at this stage when investigation is still going on it cannot be said that respondent no.1 illegally freezed the aforesaid account, therefore, petitioner is not entitled to get the relief of permission to operate the said accounts. But under the garb of investigation respondent cannot be permitted to freeze the account for unlimited period without any evidence that -14- the amount deposited in said accounts has been earned by petitioner's brother Anand Prakash Rane through unfair means. So, petition is disposed of with the direction that petitioner is free to file application before respondent no 1 to permit him to operate the aforesaid bank accounts. On filing of such application, respondent no 1 shall decide it as per law within a period of 3 months from the date of filing of the application.
13. Writ petition stands disposed of.
(P.K.JAISWAL) (RAJEEV KUMAR DUBEY)
J U D G E J U D G E
hk/